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Davison v. Department of Defense

ELR Citation: 13 ELR 20681
Nos. No. C-2-80-871, 560 F. Supp. 1019/(S.D. Ohio, 05/28/1982)

The court rules that a portion of an environmental impact statement (EIS) prepared by the Air Force on a proposal to allow civilian air cargo operations at an Air National Guard base near Groveport, Ohio, fails to provide sufficient information for a reasoned choice among alternatives in violation of the National Environmental Policy Act (NEPA). Initially, the court rules that the final EIS properly addresses each of the five topics listed in §102(2)(C) of NEPA and that the Air Force complied with other procedural requirements of the statute and prepared and reviewed the EIS in good faith. Next, the court rules that the EIS contains sufficient information on most environmental impacts. It rejects plaintiffs' claim that the use of 12- and 24-hour noise contours fatally flawed the EIS. While the use of such average measures tends to obscure the fact that the air cargo operations would cause significant new noise impacts at night, the use of other measurement techniques in the EIS made this limitation clear to the decisionmaker. Nor was it error to omit the impacts of a shift in operations to a runway whose traffic would pass over more populated areas, because such a change was unlikely. The court also rules that plaintiffs failed to meet their burden in challenging the baseline noise data and the assumption of compliance by civilian aircraft with Federal Aviation Administration 1985 aircraft engine noise standards relied upon by the Air Force in calculating the noise impacts of the proposed change. In addition, the court holds that the noise level estimates used in the EIS, though flawed, were sufficiently accurate to make possible a reasoned choice among alternatives.

The court rules that the discussion of mitigation measures in the EIS was sufficiently clear to allow the decisionmaker to take a hard look at their potential effect. Next, the court rules that a dispute at trial between experts for the parties over the adequacy of the EIS treatment of health effects does not vitiate the document's utility as a decisionmaking tool. Nor does the court accept plaintiffs' claims that the EIS understated the likely disruption of school classes by air traffic, because plaintiffs failed to present solid evidence that the situation would be worse than under present conditions at the air base.

The court rules, however, that the EIS failed to consider adequately the impact of the air cargo operations on sleep in the town of Groveport. The EIS did not make clear that the proposal would result in numerous new flights over the community at night, or that residents would be subjected to repeated brief, but intense noise episodes several nights per week. Without this information, the court finds, the decisionmaker could not make a reasoned choice concerning the change in airport use. The court orders the Air Force to prepare a supplement to the EIS dealing with the sleep impacts of its proposal and enjoins nighttime cargo operations and any major structural alterations to the air base pending completion of the supplement.

Counsel for Plaintiffs
Frederick R. Kass
505 S. High St., Columbus OH 43215
(614) 228-0997

James C. Thompson
Thompson, Swope, Burns & Biswas
6810 E. Main St., Reynoldsburg OH 43068
(614) 866-1436

Counsel for Defendants
James E. Rattan, Ass't Attorney General
17th Floor, 30 E. Broad St., Columbus OH 43215
(614) 466-3376

Byron D. Baur
Office of the General Counsel
Department of the Air Force
Rm. 4C921, The Pentagon SAFGC, Washington DC 20330
(202) 695-4691

Russell E. Leach
Bricker & Eckler
21st Floor, 100 E. Broad St., Columbus OH 43215
(614) 227-2300