Bargen v. Department of the Navy

No. 88-15643 (9th Cir. February 5, 1990)

In an unpublished decision, the court holds that plaintiffs are not entitled to an injunction against the Navy's adoption of an environmental impact statement (EIS) for its supersonic operating area at Fallon, Nevada. The court holds that the EIS adequately considered the environmental effects of sonic booms. The court holds that the EIS contains an adequate worst case analysis and thus declines to reach the issue of whether the Navy was required to prepare an EIS. The court holds that the Navy was not required to include in the EIS comments from a Federal Aviation Administration (FAA) official that did not reflect FAA's official position.

Counsel for Plaintiffs-Appellants
Richard Olson
Claassen & Olson
P.O. Box 2102, Carson City NV 89702
(702) 882-5007

Counsel for Defendants-Appellees
Gary B. Randall
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2600

[20 ELR 20658]

McKibben, J.:

[20 ELR 20659]

Memorandum^*

Plaintiffs appeal the district court's order denying their request for an injunction against Navy's adoption of an Environmental Impact Statement (EIS) for its Supersonic Operating Area (SOA) at Fallon, Nevada.

1. Plaintiffs claim that the EIS did not adequately disclose the potential environmental effects of the SOA as required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331, 4332 (1982 & Supp. V 1987), and accompanying regulations. See 40 C.F.R. § 1502.16 (1988). Specifically, they contend that the EIS failed to consider sufficiently the human health effects of sonic booms, including both short-term exposure to "focus" or "super" sonic booms and long-term exposure to sonic disturbances in general.

"[A]n EIS may be found inadequate under NEPA if it does not reasonably [set] forth sufficient information to enable the decisionmaker to consider the environmental factors and make a reasoned decision." Oregon Environmental Council v. Kunzman, 817 F.2d 484, 493 [17 ELR 20756] (9th Cir. 1987) (internal quotation marks deleted). To determine whether an EIS is adequate, we employ a "rule of reason" standard which inquires whether the EIS contains a "'reasonably thorough discussion of the significant aspects of the probable environmental consequences,'" California v. Block, 690 F.2d 753, 761 [13 ELR 20092] (9th Cir. 1982) (quoting Trovt Unlimited v. Morton, 509 F.2d 1276, 1283 [5 ELR 20151] (9th Cir. 1974)), and whether its "form, content and preparation foster both informed decision-making and informed public participation." Id. We may not substitute our own judgment for that of the agency; once we are satisfied that the agency took a "hard look" at a decision's environmental consequences, review is at an end. Id.

Plaintiffs failed to show that the Navy's treatment of the environmental effects of sonic booms was unreasonable. Although plaintiffs produced an expert who criticized the EIS, his testimony was rebutted by the Navy's experts who described the EIS's treatment of these issues as "liberal." See Order and Judgment Denying Injunction, Sept. 13, 1988 (Order) at 11. The EIS discussed in detail the potential effects of sonic booms on human health and noted that they could adversely affect the quality of life. Moreover, it recognized that some residents living under the SOA may be so severely affected by sonic booms that they would be required to relocate. We conclude that the EIS adequately considered the environmental effects of sonic booms.

2. Plaintiffs next contend that the EIS did not contain a "worst case" analysis as required by 40 C.F.R. § 1502.22 (1985) (amended by 40 C.F.R. § 1502.22 (1986)). Prior to 1986, an EIS was required to include a worst case analysis when "the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known." Id. § 1502.22(b) (1985).¹ The analysis was required to include an indication of the probability or improbability of the occurrence of the worst case scenario. Id.

The EIS clearly indicates that there are gaps in knowledge concerning the human health effects of sonic booms. It further discusses the possibility of the occurrence of "focus" or "super" booms, and acknowledges that they may lead to startle-related accidents involving exposed individuals who are operating automobiles or other equipment. In addition, the EIS recognizes that there could be adverse effects on the autonomic nervous system including changes in the vascular respiratory, endocrine and gastrointestinal systems, and discloses the more likely possibility of less drastic impacts, such as annoyance, irritability, tension, nervousness, hearing impairments, sleep disturbances and the inability to concentrate. Finally, the Navy's designation of high and low probability of occurrences is in conformance with 40 C.F.R. § 1502.22(b) as it then applied. For these reasons, we hold that the EIS contains an adequate worst case analysis.

3. Plaintiffs also contend that the EIS did not include the comments of Jerry Luce, the manager of the air space branch of the Western Regional Office of the Federal Aviation Administration. Under 40 C.F.R. § 1503.2 (1988), the FAA was required to comment on the proposed SOA because it is a federal agency with special expertise and jurisdiction over aviation-related matters. The Navy was required to include the FAA's official comments in its EIS pursuant to 42 U.S.C. § 4332(c) (1982) and 40 C.F.R. §§ 1503.1, 1503.4 (1988).

After hearing the testimony of another FAA official, the district court found that Luce's comments "did not properly reflect FAA policy." Order at 8. Rather, they reflected solely his personal opinion regarding the SOA's establishment. The court also found that FAA had no official opposition to the SOA. Id. These findings are not clearly erroneous. Consequently, notwithstanding the exclusion of Luce's comments, the EIS was reasonably sufficient to "foster both informed decision-making and informed public participation." California v. Block, 690 F.2d at 761.²

Because we find the EIS sufficient in all respects, we have no reason to consider plaintiffs' request for injunctive relief.

AFFIRMED.

Filed February 5, 1990

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1. In Animal Defense Council v. Hodel, 840 F.2d 1432 [18 ELR 20497] (9th Cir. 1988), amended 867 F.2d 1244 (1989), we held that a worst case analysis is still required today if the Notice of Intent for the EIS was issued prior to May 27, 1986. Id. at 1440 n.1 (citing 40 C.F.R. § 1502.22(c) (1988)). Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835 [19 ELR 20743] (1989), may have over-ruled us on this issue because, in that case, the Supreme Court did not require a worst case analysis for an EIS noticed prior to May 27, 1986, but still in progress on that date. See 109 S. Ct. at 1848-49 & n.18. However, we need not decide whether the Navy was required to include a worst case analysis, because we hold that it has satisfied the requirement.

2. The Navy concedes that it may have violated 40 C.F.R. § 1503.1(a)(1) by failing to elicit an official comment on the SOA from the FAA. We find however that this technical violation does not affect the sufficiency of the EIS, as the district court determined that the FAA in fact had no opposition to the EIS. Thus, the Navy's failure to include the FAA's comments could not have affected public participation or the Navy's decisionmaking. Because plaintiffs have shown no evidence of bad faith or prejudice in the Navy's acceptance of the EIS, we decline to hold that the district court should be reversed and an injunction granted on this ground. See Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-23 [10 ELR 20559] (9th Cir. 1980).

[20 ELR 20659]

Reinhardt, J.:

I agree fully with points 1 and 2 in the majority disposition. However, as to point 3, I believe that the Navy is correct when it concedes that it violated the regulation. It was simply not free to ignore the FAA's position when it drafted the EIS. I also believe that the District Court clearly erred in reaching the opposite conclusion. However, since the FAA no longer adheres to the position that should have been reported in the EIS, and since a new EIS would necessarily contain the agency's current position which is favorable to the project, it would be pointless to order a new EIS. The new document would contain no additional information that would be of any greater assistance to any person or agency than the information set forth in the original EIS. Accordingly, the record reflects a compelling reason that supports the district court's determination not to exercise its equitable power to issue an injunction. As to point 3, I concur in the result only.