Zbitnoff et al v. James

Filing 73

DECISION on Cross-Motions for Summary Judgment denying 42 Motion for Summary Judgment or MOTION for Judgment on the Administrative Record on Counts 1-6, 9 and 10; denying 45 Motion for Partial Summary Judgment; granting 54 Motion for Summary Judgment. Signed by Judge Geoffrey W. Crawford on 8/10/2016. (esb)

U.S. DISTRlST COURT

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

IGOR ZBITNOFF, EILEEN ANDREOLI,
JEFFREY FROST, RICHARD JOSEPH,
JULIET BETH BUCK, RAY GONDA, and
STOP THE F-35 COALITION,

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Plaintiffs,
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Case No. 5:14-cv-132

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CITY OF WINOOSKI,
Intervenor Plaintiff,

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v.

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DEBORAH LEE JAMES, Secretary of
the Air Force,
Defendant.

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

1

The administrative record ("AR") includes the 2013 Final Environmental Impact
Statement ("EIS") at issue in this case. The EIS consists of two volumes, containing nine
chapters and five appendices totaling more than 2,000 pages. Chapter 4 of the EIS contains
sections on specific military bases, one of which-section "BR"-concems the Burlington,
Vermont Air Guard Station.
1

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 ofthe Burlington International Airport since 1946. Over the years it has housed a
variety of military aircraft. (AR 00010720, EIS at BR4-94.) 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 F16 fleet with new F-35 aircraft. The Air Force has selected the Burlington station as one of five
locations for the initial basing ofthe F-35.
In June 2014, Plaintiffs3 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. §§ 4321-4370m-12. (See Doc. 1.) The CityofWinooskijoined 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.)
2

The F-35 appears in different models depending on the needs of each branch. The Air
Force version at issue in this case is the F-35A. For ease of reference, the court will refer to the
aircraft as the F-35. There is no plan to base the versions developed for the Marine Corps or the
Navy in Burlington.
3

The individual Plaintiffs reside in the vicinity of the Burlington International Airport;
Plaintiff"Stop the F-35 Coalition" describes itself as an unincorporated association that was
"formed to protect its members and other residents ... from the noise, health risks, housing
impacts, crash risk, loss of property value, and other harms and risks associated with introduction
ofF-35 aircraft." (Doc. 25 at 3-4.)
2

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 ofthe 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 NEP A.

3

NEPAREVIEW
In 1970, President Nixon signed NEP A 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. §§ 74017671q, or the Clean Water Act, 33 U.S.C. §§ 1251-1388, which authorize the Environmental
Protection Agency to set standards for emissions and discharges, NEP A 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,
NEP A 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 oflong-term productivity, and
(v) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented.

!d. 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.P.R.
§§ 1500.1-1518.4.
NEP A 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

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equitable remedy for enforcement ofNEP A as for other federal legislation. Through the vehicle
of review under the AP A, 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 U.S. 390 (1976).
b. Does the agency's decision to proceed following a review ofthe environmental
consequences violate the prohibition within the AP A 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 NEP A 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 ofthe courts in enforcing the requirements ofNEPA 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 ofNEP A are derived from the requirement of a
serious and complete inquiry into the environmental consequences of a proposed action.
Judicial review in the context ofNEP A 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. US. Fish & Wildlife Serv., 247 F. Supp. 2d 495, 514 (D. Vt. 2002). Such review requires a
5

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 actionconsidered 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. 201 0)).
With these general observations and standards in mind, the court turns to the specific
objections to the EIS raised by Plaintiffs.
COUNTSONEANDTHREE
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.

6

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 BR4-20.)
Efforts to reduce the effect of airport sound on residents have taken a dramatic tum 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 13 9 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 ofBurlington, 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-35A would generate generally higher noise levels than the F-16 aircraft it is replacing
except in afterburner take-off." (AR 00010649, EIS at BR4-23.) 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

4

So named because the regulations that govern the program are set forth in Part 150 of
Title 14 of the Code ofFederal Regulations. The Part 150 program is discussed in greater detail
below.
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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
8:50a.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.

5

The EIS adopts a convention under which the dB unit refers to the A-weighted sound
levels (dBA). (AR 00010577, EIS at 3-7.) The court does the same here.
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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 ofHousing 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 each increase of 10 dB results in a perceived doubling in loudness. (AR
00010577, EIS at 3-7.)
The EIS also considers the noise generated by military aircraft in flight operations
conducted away from the Burlington airport. (AR 00010666, EIS at BR4-40.) After take-off,
military aircraft conduct training flights in less inhabited areas. The sound generated by these
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operations is intermittent and results in disruption and environmental impact due to its
unexpected or startling quality. In addition, the EIS considers the impact of supersonic
operations which are accompanied by a sonic boom. These last two metrics are not relevant to
operations in and around an airport which are primarily concerned with take-off and landing.
As well as the noise metrics summarized above, the EIS also includes a series of
"supplemental noise analyses" that seek to measure the practical effect of the noise generated by
aircraft operations near the airfield. (AR 00010579, EIS at 3-9.) These supplemental noise
analyses consider interruption of speech (the pause in conversation or classroom instruction
when a plane passes overhead), interruption of sleep, potential for hearing loss, and workplace
nmse.
Finally, the EIS uses two software programs (Noisemap 7 and INM) to map or model the
expected noise levels on to the landscape surrounding the Burlington airport. (See AR
00010582, EIS at 3-12.) These programs make use of actual noise measurements and data such
as census information to approximate the impact of aircraft operation on the human population
and to compare it with baseline measurements. In this way, the proposed change can be
evaluated in a measured, objective manner.
With these principles in mind, the court turns to the consideration in the EIS of projected
changes in aircraft noise levels attributable to the proposed operation of the F-35 in the vicinity
of the Burlington airport.
The EIS includes detailed studies of baseline levels of noise generated by the current F16 operations and the projected levels of noise generated by the F-35 aircraft. The EIS opens its
discussion by recognizing that the F-35 is a noisier aircraft than the F-16: "[sound exposure level
and maximum sound level data] indicate that the F-35A would generate generally higher noise

10

levels than the F-16 aircraft it is replacing except in afterburner take-off." (AR 00010649, EIS
at BR4-23.) The EIS then sets out the measurement of this increase in several ways. These
include maps showing the contour of populations experiencing aircraft noise at average decibel
levels between 65 and 80, incidents of speech interference, incidents of classroom interference,
and potential hearing loss. The F -16 operations generated observable values in all categories.
For example, at a contour on the map drawn at exposure to 65 decibels or higher, current aircraft
noise affects 1,963 acres, 4,602 individuals, and 1,966 households. (AR 00010650, EIS at BR424.)
In general, almost all noise measurements rose when the operation ofF-35s were
modeled. These increases were observable and significant. For example, the operation of
eighteen F-35s increased the footprint of noise exposure at 65 decibels or more by an additional
289 acres, 2,061 individuals, and 997 households. (AR 00010656, EIS at BR4-30.) The
difference dropped quickly as the decibel level (dB DNL) rose. There was no increase in people
or acres exposed to more than 85 decibels. The data are detailed and copious. They document a
significant increase in noise across all measurements, which is unsurprising for the move to a
larger, more powerful aircraft.
Plaintiffs do not claim that the EIS falls short in documenting these consequences.
Instead, their claim is that the EIS fails to consider a different noise-related consequence, which
is the possibility that the municipalities within the expanded noise contours will make use of the
Part 150 program operated by the FAA to demolish additional neighborhoods in South
Burlington and Winooski. They contend that the EIS fails to consider that "nearly seven
thousand residents who will experience noise levels incompatible with residential use ifF-35
aircraft are based at Burlington will experience no 65 d[B] DNL noise if the F-35 aircraft are not

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based in Burlington." (Doc. 42-1 at 10.) Plaintiffs then note that the Winooski City Council had
raised the specter of a large empty noise zone within Winooski. In Plaintiffs' view, the failure of
the EIS to consider either the razing of many acres of a densely settled city or the cost of
retrofitting hundreds of homes and other buildings with soundproofing demonstrate the failure of
the EIS to consider the full range of mitigation measures.
Plaintiff's argument fails to recognize both the discussion of the Part 150 program in the
EIS and the factors which make it unlikely that the demolition of Winooski neighborhoods will
occur. In order to understand these issues, it is necessary to consider the nature ofthe Part 150
program and its use by the City of Burlington.
Commencing with passage of the Aviation Safety and Noise Abatement Act of 1979,
Pub. L. No. 96-193, 94 Stat. 50 (codified as amended at 49 U.S.C. §§ 47501--47534), the FAA
has been authorized to issue comprehensive regulations governing airport noise. These appear at
14 C.F .R. Part 150. They include authority to regulate civil airport operations in many respects
and to work with airport operators and local municipalities to reduce the impact of noise on
nearby communities. An airport operator seeking FAA funding for noise mitigation can submit
an Airport Noise Compatibility Program ("NCP") to the FAA for review. The NCP must be
developed through consultation with local government. If approved by the FAA, it can provide
funding for acquiring existing buildings and relocating the inhabitants, as well as less drastic
measures such as land use controls, disclosure to potential purchasers, and building insulation
programs. See Overview, The FAR Part 150 Airport Noise Compatibility Planning Program,
https://www.faa.gov/about/office_ orglheadquarters_ offices/apl/noise_emissions/planning_toolkit
/media/II.B. pdf.

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As the owner of the Burlington airport, the City of Burlington prepared a two-volume
NCP program in 1989. The NCP was approved by the FAA in 1990. The Burlington airport
acquired 59 homes between 1992 and 2007. In 2008, the airport updated the NCP and related
planning documents. It acquired 54 additional homes between 2008 and 2012. All purchases
have been on a voluntary basis. As of2012, 26 additional properties were scheduled for
purchase bringing the total over 10 years to 139 homes with priority given to homes closest to
the airport. See City of Burlington, The Airport Residential Land Program,
https://www.burlingtonvt.gov/legacy.php?itemiD=1 0180; see also In re Burlington Airport

Permit, 2014 VT 72, ,-r 3, 197 Vt. 203, 103 A.3d 153.
As the EIS demonstrates, many thousands of other homes are currently located within the
65 dB zone in South Burlington and Winooski. None are under consideration for purchase and
demolition except for approximately two dozen homes located in neighborhoods adjacent to the
airport in South Burlington. See City of Burlington, The Airport Residential Land Program,
https://www .burlingtonvt.gov/legacy.php?itemiD= 10180.
With this factual background in mind, it is clear that the demolition of homes in
Winooski is a potential mitigation factor which received appropriate consideration in the EIS.
First, on the current record, there is no evidence that any property owner outside of a few
neighborhoods in South Burlington is likely to be subject to such a program. The Burlington
NCP does not call for it. Part 150 makes it clear that an NCP calling for acquisition of property
with federal funds must include the participation of municipal government. See 14 C.F .R.
§ 150.23(d) (requiring airport operator to afford an "adequate opportunity for the active and
direct participation of the States, public agencies and planning agencies in the areas surrounding
the airport" to submit their views, data, and comments on the formation and adequacy of any

13

NCP). The City of Winooski, which is a party to this lawsuit, will have significant influence
over any decision to remove homes within its boundaries. The Winooski City Council has
already passed resolutions and a statement opposing such measures and seeking the installation
of soundproofing instead. (See AR 00052074, 00053121, 00060954.) The homeowners
themselves have a say since the Burlington acquisition program has been voluntary.
Despite obvious doubt about whether the City of Burlington, the City of Winooski, the
residents of Winooski, and the FAA will join in a demolition program similar to the one which
has operated in South Burlington, the EIS directs attention to this possibility. Although an
expansion ofhome purchases pursuant to the NCP is uncertain, the EIS addresses the existence
of Part 150 and the various forms of relief which the FAA may afford to homeowners:
While the Air Force and Air National Guard have no plans to acquire or demolish
residences as part of the F-35A beddown, the City ofBurlington has indicated that
they are considering updating the Part 150 Noise Exposure map and Noise
Compatibility Program to include F-35A operations. The update would not affect
current participants in the Airport's existing voluntary land acquisition program.
The City has indicated they anticipate that a new Noise Compatibility program
would need to be developed that may include many facets to address noise,
including, home purchase, sound insulation, and land based noise mitigation
measures. This is an action that is taking place under the aegis of the FAA and
the City of Burlington under the Noise Compatibility Program. The Burlington
[Air Guard Station] would continue to undertake the voluntary restrictions
prescribed in the Aircraft Operations Measures (Nos. 5, 6, and 7) outlined in the
Burlington International Airport, Part 150 Record of Approval (June 2008).
(AR 00010645, EIS at BR4-19.)
This discussion is sufficient to identify potential mitigation measures which lie within the
control of the City of Burlington and the FAA. Plaintiffs are correct when they state that the EIS
does not delve deeply into the likelihood that a Part 150 demolition program or an alternative
FAA program providing for soundproofing will take place. Defendant responds that the Air
Force is not required to predict and describe mitigation efforts that other agencies might employ.

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They describe the Part 150 program correctly as lying within the authority of the City of
Burlington to initiate and the FAA to administer. Since Defendant has no role in requesting,
approving, or administering the program, it is not a mitigation measure which the Air Force can
or should describe in any greater detail than now appears in the EIS.
An expansion of the demolition project would require complex policy decisions by the
municipalities involved as well as the FAA. Defendant has no basis for forecasting the direction
the program will take in the future. As Defendant points out in her memorandum, it would be
irresponsible to raise public expectations or alarm by speculating about the potential purchase or
improvement ofhomes by other governmental agencies when there is no objective basis for such
a prediction. (Doc. 55 at 31.)
The principal case defining the obligation of a federal agency preparing an EIS to address
mitigation measures that lie within the control of local government remains Robertson v. Methow
Valley Citizens Council, 490 U.S. 332 (1989). In Robertson, the development of a ski area on

federal land presented risks to air quality and to the mule deer herd. Mitigation of these impacts
lay not within control of the United States Forest Service, but rather within the scope oflocal
zoning and air-quality measures at the county level. The EIS identified these measures, but did
not condition the proposed action on their enactment. Much as in the present case, the existence
of measures to mitigate environmental harm which lay beyond the control ofthe Forest Service
were not evaluated in depth.
The United States Supreme Court approved the approach taken by the Forest Service.
The Court recognized the obligation of the EIS to "contain a detailed discussion of possible
mitigation measures." Id. at 351. The decision observed that "[t]here is a fundamental
distinction, however, between a requirement that mitigation be discussed in sufficient detail to

15

ensure that environmental consequences have been fairly evaluated, on the one hand, and a
substantive requirement that a complete mitigation plan be actually formulated and adopted, on
the other hand." Id. at 352. When the mitigation measures lie beyond the authority ofthe
agency and within the control of others, there is no requirement that the federal agency predict
and explain such measures. Instead, the federal agency's obligation is to provide a reasonably
complete description of possible mitigation efforts available to third-parties. See 40 C.F.R.

§ 1502.14(c) (requiring that EIS "[i]nclude reasonable alternatives not within the jurisdiction of
the lead agency"). This obligation is less than the obligation to provide a complete analysis of
actions that the agency drafting the EIS proposes to take.
Detailed consideration of the potential acquisition ofhomes in Winooski or an expansion
of the existing program under Burlington's NCP is impractical because little or no information is
available about its likelihood, scope, cost, or direction. These matters lie beyond the knowledge
and control of the Air Force. They also lie beyond the ability of the Air Force to finance--the
parties agree that funding for any demolition or soundproofing is available only through the FAA
as part of its authority over civil aviation.
An expansion of the NCP is also not a matter which has been addressed in a public way
by the City of Burlington. Burlington could take such action by preparing a revised NCP. An
expansion of the existing NCP would require additional studies, mapping, public notice and
participation, including the participation ofthe City of Winooski, as well as FAA review and
approval. See, e.g., 14 C.F.R. § 150.23(d). But who knows if the City of Burlington will
approach the FAA to seek funding for demolition or soundproofing in areas beyond the South
Burlington neighborhoods already involved in this program? The current program, which is
relatively modest in scope, has engendered litigation before the Vermont Environmental Court

16

and the Vermont Supreme Court. See In re Burlington Airport Permit, 2014 VT 72. An
expansion of a controversial program into Winooski-which at present appears firmly
opposed-would not be for the faint of heart.
The mitigation measure of adding soundproofing to existing homes is also permitted
under the Part 150 program. It has never been employed by the City of Burlington and the FAA
in the two decades during which Burlington has purchased and razed homes. It was identified as
a favored course of action by the Winooski City Council. The EIS refers to the potential
availability of such measures without attempting to predict whether Burlington and the FAA will
revise the NCP to provide such measures to residents affected by noise. (AR 00010645, EIS
at BR4-19.)
Defendant has control over the operation of Air Force aircraft, and Plaintiffs have no
quarrel about the disclosure of operational measures to mitigate noise. These measures include
restrictions on hours of flight and a prohibition on the use of afterburners at take-off. Defendant
has no control over the possibility that the City of Burlington and the FAA will decide to expand
the current Part 150 program. The EIS identifies the program without taking a position on the
likelihood or desirability of expanding it. Because the Part 150 program lies outside the
authority ofthe Air Force and VANG, the EIS meets the requirements ofNEPA by calling
attention to the existence of the program without offering any prediction about whether the City
of Burlington will take the legal and political steps required to expand it.
The court does not agree with Plaintiffs that NEP A requires Defendant to project the cost
of destroying the thousands ofhomes which lie within the 65 decibel level zone. Similarly, there
is no legal basis for requiring Defendant to calculate the cost of soundproofing all these homes.
Both the number of homes lying within the expanded 65 dB zone and the approximate cost of

17

acquiring them could be estimated. The problem is that the likelihood that such an enormous
municipal project could take shape lies beyond the reasonable consideration of mitigation
measures. It cannot be excluded, but in the absence of any showing of support from any of the
cities involved or the FAA, a calculation of demolition and acquisition costs would be highly
speculative and therefore beyond the requirements ofNEP A.
Plaintiffs' remaining complaints about the treatment of the issue of noise in the EIS
concern comparisons between the effect of the F-35 deployment in a densely settled area such as
Chittenden County and the more remote air bases available as alternative sites. That issue also
receives consideration. The parties agree that fewer residents means less disruption of residents'
lives by noise. This is less a methodological objection, however, than it is a disagreement about
the policy choices made by Defendant. The information about the relative impact of noise at
various air bases appears in the EIS. Plaintiffs take issue with the decision, not with the lack of
disclosure of information.

COUNT TWO
POTENTIAL CONFLICT WITH STATE AND LOCAL LAND USE LAWS
Plaintiffs contend that the EIS fails to meet the requirements ofNEPA because there was
insufficient consideration of possible conflict with state and municipal land use law and plans.
Defendant responds that neither Vermont's Act 250, 6 Vermont's principal land use statute, nor
municipal zoning or land-use ordinances apply to V ANG operations so there can be no conflict.
They also contend that the EIS acknowledged and weighed many of the specific harms that local
law is intended to address, such as impact on low income areas.

6

Act 250 is a permitting system "intended to regulate and control development so that it
will not be unduly detrimental to the environment and orderly growth will be promoted." In re
Request for Jurisdictional Op., 2015 VT 41, ~ 7, 198 Vt. 510, 117 A.3d 457; see also 10 V.S.A.
§ 6081(a).
18

The CEQ regulations, which govern the application ofNEP A, contain two provisions
concerning state and local laws. First, § 1506.2(d) requires an EIS to consider any
"inconsistency of a proposed action with any approved State or local plan and laws." 40 C.F.R.
§ 1506.2(d). If there is an inconsistency, the EIS "should describe the extent to which the agency
would reconcile its proposed action with the plan or law." Id. Second,§ 1502.16(c) requires
consideration of"[p]ossible conflicts between the proposed action and the objectives of Federal,
regional, State, and local ... land use plans, policies and controls for the area concerned."
40 C.F.R. § 1502.16(c) (emphasis added).
These regulations require the court to consider two different questions. First, does the
proposed agency action violate state or local law? And second, does the proposed action defeat
the objective of state or local law or land use plans?
It is clear that neither state law nor local ordinance constrains VANG operations. The

Vermont Supreme Court reached this conclusion with respect to Act 250. In In re Request for

Jurisdictional Op., 2015 VT 41, 198 Vt. 510, 117 A.3d 457, opponents of the siting of the F-35
aircraft sought to invoke Act 250 jurisdiction over improvements to the hangar structures and the
additional noise generated by F-35 operations. Id. ,-r 1. The Vermont Supreme Court rejected
these arguments on grounds of federal preemption and statutory construction. Because the
basing of the F-35 aircraft serves a federal purpose and not a state purpose, the hangar
improvements required to service and care for the aircraft fall outside Act 250 jurisdiction. Id.

,-r,-r 10-19. The use ofthe runways is subject to an Act 250 permit, but that permit does not open
the airport to state regulation on all issues. Id. ,-r,-r 24-31. The Vermont Supreme Court
recognized that principles of federal preemption require that noise generated by aircraft be
regulated by federal, not state law. Id. ,-r 31. In short, there is no possibility of conflict between

19

Act 250 and Defendant's proposed action because the highest court in Vermont has recognized
that Act 250 does not apply.
Similarly, municipal land use law does not govern flight operations, civil or military, on
grounds of federal preemption. See City ofBurbank v. Lockheed Air Terminal Inc., 411 U.S. 624
(1973) (invalidating municipal ordinance prohibiting aircraft from taking off during certain
nighttime hours). In the absence of a conflict, 40 C.P.R.§ 1506.2(d) does not apply.
Section 1502.16(c) is broader in scope. It requires consideration of conflict between the
proposed action and objectives of federal, state, and local law as well as local land use plans.
Plaintiffs argue that the EIS fails to address the possible conflict with the goals of Act 250, the
South Burlington Nuisance ordinance, 7 and the municipal development plans of South
Burlington and Winooski. All of these measures may be preempted by federal law and therefore
not binding upon the Air Force, but Plaintiffs observe that these laws and plans favor the
protection of the population from unwanted noise. Plaintiffs criticize the EIS for failing to
address this possible conflict between the agency action and the objectives of the municipal
prOVISIOnS.
In response, Defendant states that the detailed evaluation of the change in sound levels
and mapping of noise contours in the EIS provide a basis for evaluating any potential conflict
with local land use laws and plans. A greater degree of specificity is not possible for two
7

Section 4 of the South Burlington Nuisance ordinance states:

"It shall be unlawful for any person to make or cause to be made any loud or
unreasonable noise. Noise shall be deemed to be unreasonable when it disturbs,
injures or endangers the peace or health of two or more unrelated people or when
it endangers the health, safety or welfare of the community. Any such noise shall
be considered to be a noise disturbance and a public nuisance."

(Doc. 25 at 15.)
20

reasons. State and municipal law do not apply for reasons of preemption, and measures such as
Act 250 and the South Burlington Comprehensive Plan provide few specific standards for
measuring conflict. What standards there are translate poorly into a dispute over aircraft noise.
For example, Plaintiffs observe that"[ c]riterion 8 of Act 250 has been repeatedly
interpreted as protecting residential areas and 'areas of frequent human use' from noise
exceeding 55 dB Lmax (i.e., instantaneous noise)- a standard that F-35 noise will violate
multiple times daily." 8 (Doc. 42-1 at 34.) Current levels of military aircraft noise greatly exceed
this standard. The F -16 aircraft generate values on take-off and landing of between 94 and 66 dB
Lmax, and the F-35A values are between 115 and 83 dB Lmax. 9 As these numbers indicate,
military jet planes are loud. Any landing or take-offby either an F-16 or an F-35 greatly exceeds
Act 250 limits as these have been developed by the regional Act 250 administrators. The sound
limitations developed by Act 250 administrators for land-based developments do not compare
easily with the noise generated by an airport.
Similarly, the South Burlington Nuisance ordinance prohibits all "loud or unreasonable
noise ... [which] disturbs, injures or endangers the peace or health of two or more unrelated
people or when it endangers the health, safety or welfare of the community," noting that "[a]ny
such noise shall be considered to be a noise disturbance and a public nuisance." (Doc. 25 at 15.)
This is a subjective standard which could be violated every time a jet plane-military or
commercial-flies overhead. Like most noise ordinances, the South Burlington ordinance is
drafted so as to encompass a wide variety of noisy human activities. It places discretion with

8

The dB Lmax unit is a measure of the maximum sound level of a single discrete noise

event.
9

These numbers represent the maximum sound levels over the course of a take-off or
landing. The weighted average values are different
21

those charged with enforcement and expresses the community's preference for maintaining
peace and quiet.
The provisions of the South Burlington Comprehensive Plan are even more general and
aspirational:
[P]roviding for housing is a fundamental element of the Plan. . . . Existing and
developing residential neighborhoods shall be identified and protected through
appropriate zoning and responsible site planning. Many of these residences
constitute an irreplaceable, lower cost segment of the City's housing stock.
(AR 00019479.) As noted by Defendant, the Plan does not provide a proscriptive set of rules,
but rather provides "a framework and guide" which "states goals and objectives and recommends
courses of action." (AR 00019472.) The Plan notes that its recommendations "are not mandates,
but are suggestions to help guide the operations of the City and its citizens." (Id.) In the absence
of specific sound measures and other requirements, an action such as basing the F-35 aircraft
does not violate the Plan except in the broad sense that any activity which generates noise runs
contrary to the planners' desire for quiet. Like the South Burlington Nuisance ordinance, the
Plan favors peace and quiet. It could not be otherwise. No city plan would seek to increase
noise. It is fair to say that South Burlington, through its nuisance ordinance and its Plan, have
made peace and quiet a community objective.
The EIS does not ignore the objective of state and local government to protect the
population from noise disturbance. As Plaintiffs point out, the EIS does not analyze whether it
would be in violation ifthe above provisions applied to VANG. But the provisions do not apply
and assuming for the sake of argument that they do would be misleading. Instead, the EIS
describes in detail the baseline impact which VANG operations now have on different types of
land use and the likely increase imposed by the F-35. These measures include average decibel
levels for uses such as schools, churches, residential neighborhoods, and hospitals. They also
22

include the impact on different types of land use such as farmland and commercial zones. One
might describe this as a functional review of the impact of noise on local land use measures. It
identifies the types of uses which flow from zoning limitations, Act 250, and other local
measures, and then considers the baseline and future proposed impact of the agency's activities
on these uses.
The CEQ's guidance on compliance with NEPA offers general advice about the duty of a
federal agency to consider the objectives oflocalland use regulations. See Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg.
18026 (1981). In response to the commonly asked question of"[h]ow should an agency handle
potential conflicts between a proposal and the objectives of Federal, state or local land use plans,
policies and controls for the area concerned," the CEQ offers the following guidance:
The agency should first inquire of other agencies whether there are any potential
conflicts. If there would be immediate conflicts, or if conflicts could arise in the
future when the plans are finished . . ., the EIS must acknowledge and describe
the extent of those conflicts. If there are any possibilities of resolving the
conflicts, these should be explained as well. The EIS should also evaluate the
seriousness of the impact of the proposal on the land use plans and policies, and
whether, or how much, the proposal will impair the effectiveness of land use
control mechanisms for the area. Comments from officials of the affected area
should be solicited early and should be carefully acknowledged and answered in
the EIS.

!d. at 18033.
Defendant clearly met the first obligation which was to engage with local government. In
July 2003, the City Councils of South Burlington and Winooski held special meetings to discuss
the project. (AR 00010643, EIS at BR417.) These municipalities actively considered the basing
controversy. The Winooski City Council passed measures to oppose the basing unless
Defendant could provide assurances that there would be no increase in noise experienced in the
affected residential areas. The City ofWinooski intervened as a plaintiff in this case. The City
23

of South Burlington was slower to take a stand, but the Planning Commission issued a comment
to the revised draft EIS ("RDEIS") which criticized the impact of noise on the City's
neighborhoods. (AR 0008397, RDEIS at E-1258.) Ultimately the City Council voted to
authorize the filing of an amicus brief in this lawsuit. The EIS was prepared in a very public
setting with an opportunity for municipal leaders to express their reservations and opposition to
the increased noise levels in their communities.
The second issue is whether the EIS adequately acknowledges the conflicts. As already
stated, the notion of a conflict with local measures which are preempted takes us into the realm
oftheory. There can be no direct "conflict" with a provision that does not apply. But certainly
there may be a conflict in objective and purpose. The EIS describes its interaction with members
of the public through the comment process in detail, both at the time of initial "scoping" and later
in special City Council meetings. (AR 00010641-43, EIS at BR4-15-17.) Both support and
opposition are considered.
The question which was not answered directly in the EIS was whether there is a potential
conflict between the stated objective oflocal zoning and land use laws and the proposed action.
But those objectives are expressed only as general prohibitions against excessive noise.
Plaintiffs can identify no local noise standards against which Defendant can measure its action.
The Act 250 standard of 55 dB is a common-law rule developed through the local hearing
process. See Big Rock Gravel Act 250 Permit, Docket No. 45-3-12 Vtec (Vt. Super. Ct. 2012);
see also McLean Enters. Corp., No. 2S1147-1-EB (Vt. Envtl. Bd. 2004); Alpine Stone Corp., No.

2S1103-EB (Vt. Envtl. Bd. 2002). The maximum sound level is so low that it is violated by all
current take-offs and landings by the F-16 squadron. If it applied to the airport-which it does
not-the conflict would be long-standing and unchanged except as to degree by the proposed

24

action. Similarly, the prohibition against unreasonable noise in the South Burlington Nuisance
ordinance provides no basis for concluding that there is an unaddressed conflict in objectives.
The existing and proposed noise levels were described in the EIS in detail. Whether these
exceed the subjective standard of the ordinance is not possible to determine.
The court concludes that the EIS gives sufficient consideration to local land use laws and
plans to satisfy the requirements ofNEP A. It meets this requirement by providing notice and a
detailed discussion of the consequences of the proposed action in various land use zones,
particularly as they concern noise. The parties are in effect talking past one another. Plaintiffs
seek a ruling requiring Defendant to review local law, which does not apply and which sets no
specific standards, to determine if the proposed action violates the purpose of these provisions.
Defendant has prepared an EIS which lays out the facts concerning exposure to increased noise,
but does not discuss whether local noise ordinances, Act 250, or the general language in
municipal plans for residential development are in conflict with the proposed action.
To the extent that the local provisions are read to oppose unreasonable noise in general,
the EIS clearly addresses these community concerns. The discussion of increased noise forms a
major part of the EIS. In this respect, the EIS serves its dual purpose of forcing the agency to
consider the likely impact of its action on people living close to the airport and putting the public
on notice ofthe facts underlying its decision. Because the local measures do not govern the
agency action or contain specific standards for noise, NEP A does not require the agency to
consider their effect if, for purposes of argument, they were deemed to apply. Similarly, because
the various city planning documents are advisory and only suggestive ofthe types of
development decisions the cities favor, the EIS cannot engage in a discussion of inconsistency.

See Audubon Naturalist Soc y of the Cent. At!. States, Inc. v. US. Dep 't of Transp., 524 F. Supp.

25

2d 642, 714 (D. Md. 2007) (explaining that there can be no inconsistency with a plan that merely
expresses preferences).
COUNT FOUR
FAILURE TO ADDRESS IMPACT ON HISTORIC DISTRICTS
In a manner similar to Count One, Plaintiffs complain that the EIS failed to consider the
possible demolition ofhomes within the historic districts of Winooski. Winooski is an old city,
and it includes two related sites on the National Register of Historic Places: the Winooski Falls
Mill District and the Winooski Falls Mill Historic District. Following an exchange with the
Vermont State Historic Preservation Office, the RDEIS documented the inclusion of these
districts within the likely 65 dB DNL zone generated by the F-35 operations. (AR 00008807,
RDEIS at BR4-62.)
As Defendant points out in her brief, NEP A does not require discussion of the impact of
agency action on individual historic structures. SeeN Idaho Cmty. Action Network v. U.S. Dep 't

ofTransp., 545 F.3d 1147, 1156 (9th Cir. 2008) (per curiam). The National Historic
Preservation Act, 54 U.S.C. §§ 300101-300321, imposes a separate duty on federal agencies to
consider the impact of a proposed activity on historic properties. That issue is not before the
court. And for the reasons previously discussed, the possible purchase of homes in Winooski by
the City of Burlington falls beyond the required reach of the EIS. The EIS does provide
discussion of the likely impact of increased noise within the historic districts. The contour maps
and other information provided about interruption of conversation and sleep, as well as
consequences of jet aircraft noise, offer a detailed discussion about the environmental impact
within the historic district zones. There is no further requirement that Defendant catalog historic
structures or documents the environmental impact building by building.

26

For essentially the reasons covered in the discussion of Count One above, the court
concludes that the consideration of environmental impact on the historic districts within the City
of Winooski meets the requirements of a "hard look" under NEP A.
COUNT FIVE
POSSIBLE RETIREMENT OF THE F-16 FLEET

Plaintiffs argue that since the existing F-16 aircraft will reach retirement in 2018, the EIS
uses the wrong baseline of "no action" alternative. They contend that instead of comparing the
current experience of regular F-16 operations with the increased noise ofF-35 operations, the
EIS should have started with a baseline of no military jet noise and a VANG base devoted to the
operation of drones or other activities not involving landing and take-off of jet aircraft.
Defendant responds that termination ofYANG operations is not a likely outcome even ifthe F35 aircraft are based elsewhere. The EIS is drafted from the perspective that military jets of
some description will continue to be flown by YANG and that there is no reason to believe the
base will be closed and the squadron disbanded even if the F-35 aircraft are based elsewhere.
Defendant is correct that the record contains no evidence to support the conclusion that
military jet operations will end in 2018. The evidence is to the contrary. The Air Force has
stated its commitment to fighter operations in Burlington even if the F-35 is based elsewhere.
(AR 00008552, RDEIS at PA-47.) Because an EIS is at its heart a comparison of the present
against the future, analysis has to start with current conditions in the absence of evidence of an
impending change in circumstances. See Biodiversity Conservation All. v. US. Forest Serv.,
765 F.3d 1264, 1269 (lOth Cir. 2014) (citation omitted). The CEQ regulations also recognize
this principle. See 46 Fed. Reg. at 18027.
The parties agree that the current F-16 aircraft in use by YANG will reach the end of
their useful life in 2018. They also agree that Defendant's current plan is to replace them with
27

the new F-35 aircraft. The requirements ofNEPA do not dictate these plans; they simply require
their disclosure. What NEP A does not require is the disclosure of plans which do not exist. In
other words, there is no evidence of a plan to close the base or to use it for purposes other than
flying aircraft. In light of the 70 year history of flight operations and the insistence ofVANG
that continued flight operations are contemplated, the court will not require Defendant to
consider closure or repurposing of the base as an alternative course of action in the EIS.
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., the
United States Supreme Court set limits on NEPA's requirement that a federal agency consider all
alternatives to a proposed action. See 435 U.S. 519, 551 (1978) (citing 42 U.S.C. § 4332(C)).
The Court instructed that "the concept of alternatives must be bounded by some notion of
feasibility." Id. The Court noted that "[c]ommon sense ... teaches us that the 'detailed
statement of alternatives' cannot be found wanting simply because the agency failed to include
every alternative device and thought conceivable by the mind of man." I d. "Feasibility" is not
the measuring stick in this case. Any base can be closed, and new uses are always possible. But,
as in Vermont Yankee, common sense imposes limits on the alternatives which must be
considered in an environmental statement. Without some reason to believe that Defendant or
YANG intends to stop flying military aircraft at the Burlington airport, there is no basis for
requiring supplementation of the EIS to consider remote or unlikely policy decisions.
The court concludes that the EIS properly considered the difference in environmental
impact posed by the current F -16 squadron and the proposed F-3 5 squadron. That comparison
reflects the appropriate consideration of current conditions with future conditions. In the absence
of evidence that an alternative such as base closure or use for purposes other than the basing of

28

aircraft is under consideration, there is no basis for requiring the EIS to include such remote
alternatives.

COUNTS SIX and NINE
CONSIDERATION OF ENVIRONMENTAL CONDITIONS IN EVENT OF A CRASH
Following issuance of the EIS, Plaintiffs obtained a memorandum drafted by a retired
Department of Defense employee and a South Burlington City Councilor (the "Greco-Sprey
memo"). The memo outlines the authors' views ofthe environmental risks presented by an F-35
crash. In the authors' opinion, a crash of a "stealth" aircraft with a high percentage of composite
elements presents a risk of exposure to toxic gas and smoke far greater than the risks presented
by the crash of a conventional jet aircraft. The Greco-Sprey memo identified the stealth surface
coatings and the carbon fiber composite materials used to construct the F-35 as the source of
toxic discharge and an elevated risk of injury.
On the strength of the Greco-Sprey memo, Plaintiffs requested that Defendant prepare a
Supplemental EIS ("SEIS"). Defendant ordered Lieutenant Colonel Victor Caravello, the Air
Force's then Director of Occupational Health Policy, to conduct a review of the issues raised by
the request. Lt. Col. Caravello produced a memorandum, concluding that composite materials
are commonly used in all types of jet aircraft. The crash of an F-35 would present risks to
residents and emergency personnel similar to those presented by any crash of a jet aircraft and
require a hazardous material response. A jet consumed by fire following a crash would present a
serious chemical hazard regardless of whether it was equipped with stealth coatings. Following
receipt of Lt. Col. Caravello's memo, Defendant declined to draft and issue an SEIS concerning
the hazards presented by a potential crash. This court previously declined to include the GrecoSprey memo in the record ofthis case. (See Doc. 38.)

29

In reviewing an agency's decision to decline to produce an SEIS, the court must
determine whether the agency took a "hard look" at the information presented, and whether the
agency's decision, based on what it learned, was "arbitrary or capricious." See Nat. Res. Def
Council, Inc. v. FAA, 564 F.3d 549, 561 (2d Cir. 2009) (citation omitted). The "arbitrary and
capricious" standard is a higher standard than the court's deferential review of what the agency
included and omitted from the EIS. Judgment for Plaintiffs on the ground that the agency
refused to prepare an SEIS following the submission of new information requires a finding of a
"clear error of judgment" on the part of the agency's personnel. See Marsh v. Or. Nat. Res.
Council, 490 U.S. 360, 378 (1989). This higher standard of review is necessitated by the need
for finality in the preparation and release of the EIS. If the standards were the same, withdrawal
and supplementation of every EIS as new information became available would become the norm.
In this case, Lt. Col. Caravello took a thorough look at the concerns raised by the GrecoSprey memo and Plaintiffs' counsel. He reviewed the presence of composite materials in all
modern jet aircraft, commercial and military, as well as motor vehicles, boats, and buildings. He
determined that the emergency response to any fire involving composite materials was similar
and well-understood by fire departments and other responders. The crash of any military jet
would likely result in the declaration of a National Defense Area so as to provide control and
safety measures over the crash site. Lt. Col. Caravello's views were supported by other experts
within the agency.
There is insufficient record evidence that an F-35 crash requires a unique response so as
to necessitate special environmental review. The risk of a crash cannot be ruled out, and
Defendant has not engaged in false assurances. Flight safety is addressed in the EIS. (AR
00010595-600, 00010675-81, EIS at 3-25-3-30, BR4-49-4-55.) The concern that the coatings

30

applied to the outside of the aircraft pose an additional environmental hazard was considered and
rejected by Lt. Col. Caravello. (AR 00065427--431.) Similarly, Plaintiffs' claim that the use of
composite materials in the aircraft, such as carbon fiber, received consideration. Plaintiffs may
disagree with the merits of Defendant's decision that neither of these factors required an SEIS,
but the record is clear that these concerns received fair and responsible consideration by
Defendant.
The court concludes that Defendant did not act in an arbitrary or capricious manner in
denying the request for an SEIS. The Air Force assigned an experienced person to consider the
issues raised by Plaintiffs. This review was documented in Defendant's Record of Decision
("ROD"). The ROD demonstrates that the environmental issues raised by the Greco-Sprey
memo were treated seriously and investigated in a professional manner. The agency's
investigation concluded that the facts did not warrant an SEIS. The court reviews that decision
for signs of arbitrary or capricious decision-making and finds none.
COUNT TEN
COST CONSIDERATIONS

Plaintiffs complain that the EIS failed to evaluate the economic costs of the basing
decision. They argue that by omitting discussion of the pending retirement of the F-16 fleet,
Defendant kept the replacement cost unrealistically low. Defendant responds that cost was of
less importance than "mission," and that the drawdown of the eighteen aging F-16 aircraft
currently based in Burlington and their reassignment or retirement was disclosed in the EIS. (AR
00004972, Draft EIS at 2-3.) In selecting Burlington as an F-35 location, Defendant relied on
many factors which augured well for the success of the mission. These included the existing
infrastructure at VANG and the availability of overland air space for training and practice,

31

including coalition training opportunities with Canadian aircraft. (AR 00012882-83, ROD at 23.)
Disclosure of costs and benefits of agency action are necessary to ensure agency and
public examination of the proposed decision. See 40 C.F .R. § 1502.14 (EIS "should present the
environmental impacts of the proposal and the alternatives in comparative form, thus sharply
defining the issues and providing a clear basis or choice among options by the decisionmaker
and the public"). The EIS identifies many of these practical considerations without reducing
them to dollar values. See 40 C.P.R. § 1502.23 ("[T]he weighing ofthe merits and drawbacks of
the various alternatives need not be displayed in a monetary cost-benefit analysis and should not
be when there are important qualitative considerations.") Since the successful accomplishment
of "mission" is the salient factor which Defendant identifies as driving the decision reflected in
the EIS, the dollar cost of choosing Burlington over another location was never central to the
decision-making. Certainly Defendant has discretion in selecting decision-making criteria, and
Plaintiffs do not criticize her for valuing "mission" as a criterion. Plaintiffs' claim is narrower.
They believe that the cost must have been lower than reported because it did not reflect the likely
retirement of the eighteen F -16 aircraft.
The total estimated cost of improvements to the Burlington YANG facilities required to
accommodate the eighteen F-35 aircraft is 4.7 million dollars ($261,000 per aircraft). Other
locations are cheaper with Jacksonville, Florida being a mere $400,000. These are large sums
for an individual, but minor expenditures in the case of aircraft costing many millions of dollars
apiece. In addition to positive cost, there are savings from locating the F-35 at Burlington
because it saves the expense of replacing the aging aircraft with "newer, more advanced fighter

32

units that are not being replaced with these F-35As." (AR00012883, ROD at 3.) Plaintiffs
complain that these cost-savings were not addressed in the EIS.
There is an aspect of artificiality about Plaintiffs' argument. The EIS begins by
disclosing that the F-35 was developed to replace the F-16 and other aircraft. This is hardly a
bombshell. It has been an ambitious plan for many years, and the topic of much public
discussion. The EIS is drafted with the expectation that the proposed action will result in the
arrival of one kind of aircraft and the departure of the other. The out-of-pocket costs associated
with the changeover were disclosed to be relatively modest. No new runways are required. The
existing hangar space, which is visible from the public side of the airport, requires internal
modification. No new buildings are planned. The staff at YANG is evidently well-suited to this
new assignment. The F-35 may be the world's single most expensive aircraft, but basing it in
one established base or another is not a big expense.
The information which Plaintiffs complain was improperly considered is the cost of
replacing the current F-16s with more recent models if the F-35s do not arrive. As the ROD
states, "The F-35As at Burlington AGS will negate the need to relocate the front line F-16s
(Block 52) at McEntire or the F-15Cs currently stationed at Jacksonville." (AR 00012883, ROD
at 3.) Plaintiffs note that the administrative record includes estimates of$3 million to rebase the
McEntire F-16s, and $4-22 million to rebase the Jacksonville F-15s. (AR 00065329.) Because
Plaintiffs believe that Defendant made an independent decision to cease operations at YANG if
the F-35 aircraft do not arrive, they believe the cost analysis, including the rebasing expenses,
overstates the expense of relocating newer F-16 aircraft to YANG from their current locations.
Because they believe that newer F-16 aircraft will not be sent to YANG if efforts to locate the F-

33

35 fail, they argue that the relocation costs of moving newer F-16 aircraft to YANG is
exaggerated.
The fallacy in this argument is that there is no indication in the record that Defendant has
decided to close the YANG base if the F-35 does not arrive. The record shows the opposite.
Fighter planes of one description or another will continue to be based at YANG. (AR 00008552,
RDEIS at PA-47.) Relocating these planes will come with costs. These costs will not be
avoided by an undisclosed decision to close YANG or alter its mission to exclude aircraft
operations. And, as previously discussed, the cost ofbasing the F-35 or other aircraft at YANG
was never a significant driver ofthe agency's decision-making.
For these reasons, the court concludes that the analysis of cost ofbasing the F-35 at
YANG was adequately considered in the EIS.
CONCLUSION

The court has determined that the EIS meets the requirements ofNEP A. When it is read
in conjunction with the supporting documentation, it is clear that Defendant took a "hard look" at
the environmental consequences of the basing decision, including the specific areas about which
Plaintiffs complain. It is also clear that the EIS process served its second purpose of generating
public interest and examination of the agency's decision-making process. The record
demonstrates that a large number of Y ermont residents turned out for meetings or sent in
comments about the process. Finally, the court is satisfied that the decision to locate the F-35 at
YANG meets the requirements that the agency action not be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. The EIS documents the adverse
environmental changes that basing the F-35 aircraft at YANG will bring to the surrounding
community. These changes received thoughtful and detailed consideration. The agency's

34

decision to locate the aircraft at VANG reflects the trade-offs between Defendant's missiondriven needs and the interests of the community in limiting noise and other environmental
impacts that are frequently present in major federal projects. The decision itself cannot
reasonably be said to be arbitrary or otherwise in violation of the requirements of the AP A and
NEPA.
Defendant's Motion for Summary Judgment (Doc. 54) is GRANTED and Plaintiffs'
motions (Docs. 42, 45) are DENIED.
Dated at Rutland, in the District ofVermont, this

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lOth

day of August, 2016.