Valley Citizens for a Safe Environment v. Vest

No. 91-30077-F (D. Mass. May 6, 1991)

The court holds that the Air Force is not required under the National Environmental Policy Act (NEPA) to prepare a supplemental environmental impact statement (EIS) for its night flights of transport planes into and out of Westover Air Force Base. Although the Air Force's EIS for the operation of transport planes at the base prohibited night flights, the flights went on a 24-hour schedule after the Persian Gulf War began. The court holds that the Council on Environmental Quality (CEQ) and the Air Force reasonably determined that the continuing unstable situation in the Middle East created an emergency within the meaning of NEPA and CEQ regulations, thus suspending the Air Force's duty to strictly comply with NEPA. Although the war had ended, the agencies reasonably found that the emergency conditions continued, given the military's operational and scheduling difficulties and the volatile nature of the Persian Gulf.

[Related decisions are published at 19 ELR 20497 and 20 ELR 20185.]

Counsel for Plaintiff
Cristobal Bonisaz
48 N. Pleasant, Amherst MA 01002
(413) 253-5626

Counsel for Defendants
C. Jeffrey Kinder, Ass't U.S. Attorney
1550 Main St., U.S. Courthouse, Springfield MA 01103
(413) 785-0235

[22 ELR 20335]

Freedman, J.:

Memorandum and Order

I. Introduction

Plaintiff Valley Citizens for a Safe Environment ("Valley Citizens" or "plaintiff")¹ has moved for a preliminary injunction to prevent the United States Air Force from flying C-5A transport planes into and out of Westover AFB between the hours of 10:00 p.m. and 7:00 a.m. Defendants Donald B. Rice, Secretary of the Air Force, Gary D. Vest, Deputy Assistant Secretary of the Air Force, and Michael R. Deland, Chairman of the Council for Environmental Quality ("CEQ"), oppose plaintiff's motion, and have moved for summary judgment.²

For the reasons stated below, the Court denies plaintiff's motion for preliminary injunction and grants summary judgment in favor of all three defendants.

II. Facts

For purposes of defendants' motion for summary judgment, the Court will view the relevant facts in a light most favorable to the non-moving party. Jensen v. Frank, 912 F.2d 517, 520 (1st Cir. 1990).³ Upon making a motion for summary judgment, the moving party must "point[] out . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Fed. R. Civ. P. 56(c). Once the summary judgment movant has averred an absence of genuine, material issues, "[t]he burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1990) (citations omitted).

In April of 1987, the Air Force issued an Environmental Impact Statement ("EIS") pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), and attendant regulations.⁴ The EIS evaluated the likely effects that the presence and operation of sixteen C-5A transport planes at Westover AFB would have on the environment in the immediate area. After issuance of the EIS, the Air Force transferred some C-5As to Westover AFB, and Valley Citizens filed suit to enjoin transfer of the planes. This Court decided not to enjoin the transfer, Valley Citizens for a Safe Environment v. Aldridge, 695 F. Supp. 605 [19 ELR 20497] (D. Mass. 1988), and the First Circuit Court of Appeals affirmed. Valley Citizens for a Safe Environment v. Aldridge, 886 F.2d 458 [20 ELR 20185] (1st Cir. 1989). Thus, the Air Force transferred sixteen C-5As to Westover AFB, and operated the C-5As in accordance with the terms of the EIS. Among other conditions, the EIS provided that "[n]o military activity would be routinely scheduled between the hours of 10:00 p.m. and 7:00 a.m. . . ." Environmental Impact Analysis Process at page viii (April 1987) (attached as Exhibit Two to Defendants' Memorandum in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Preliminary Injunction (April 3, 1991) ("Defendants' Memorandum") ).

Notwithstanding the EIS's prohibition on nighttime C-5A flights, the Air Force began to fly C-5As into and out of Westover AFB on a twenty-four hour schedule in September 1990. This flight schedule was a consequence of the United States' commitment of military forces in Operation Desert Storm.

Although plaintiff requested that the Air Force prepare a supplemental Environmental Impact Statement ("SEIS")⁵ in order to evaluate the environmental impacts of the night flights, especially with regard to noise caused by the C-5As, the Air Force refused. Rather, the Air Force notified plaintiff that CEQ had proclaimed that an emergency provision in the regulations, 40 C.F.R. § 1506.11, allowed the Air Force to forego strict compliance with NEPA. Indeed, defendant Deland, on behalf of CEQ, had determined that the developing situation in the Middle East constituted an emergency within the meaning of 40 C.F.R. § 1506.11. See Letter from Michael R. Deland to Colin McMillan, Assistant Secretary of Defense (August 28, 1990) (attached as Exhibit Ten to Defendants' Memorandum). Thus, the Air Force contended, it could continue to operate the C-5As at Westover AFB without the preparation of a SEIS as would ordinarily be required under NEPA.

Plaintiff filed suit on March 25, 1991, seeking declaratory and injunctive relief. Plaintiff demands that the Court declare that the Air Force has violated its obligations under NEPA and CEQ regulations by failing to prepare a SEIS before commencing nighttime C-5A flights at Westover AFB. Plaintiff also seeks a declaration that CEQ acted arbitrarily and capriciously in allowing the Air Force to proceed with nighttime C-5A operations at Westover AFB without first completing a SEIS. Plaintiff further seeks to enjoin the Air Force from flying C-5A aircraft to and from Westover AFB between the hours of 10:00 p.m. and 7:00 a.m. until the Air Force prepares a SEIS. Defendants urge the Court to deny the requested injunctive relief. They argue that they have complied with their obligations under NEPA, and have moved for summary judgment.

To date, the C-5As have continued to fly at Westover, day and night, transporting various machines, equipment, and military personnel to and from the Middle East. While defendants will not establish a fixed date for cessation of nighttime C-5A flights, the Air Force anticipates that the flights will end by July 1991.

III. Discussion

A. Standard of Review

[22 ELR 20336]

The Air Force and CEQ determined that, given the unusual military circumstances, preparation of an SEIS was not necessary. The Air Force by its very nature must make determinations with regard to military operations, just as CEQ is empowered to interpret NEPA and to advise the executive branch on the environmental implications of NEPA. 42 U.S.C. § 4344. Clearly, both CEQ and the Air Force possess particular information and expertise with regard to NEPA and the military operation in question. Thus, the Court will apply the "arbitrary and capricious" standard of review when deciding whether to disturb the agencies' decision to forego strict compliance with NEPA's EIS requirement. Marsh v. Oregon Natural Resources Council, __ U.S. __, 104 L. Ed. 2d 377, 394 [19 ELR 20749] (1989); Sierra Club v. Marsh, 769 F.2d 868, 870-712 [15 ELR 20911] (1st Cir. 1985) ("Sierra Club I"); Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (establishing "arbitrary and capricious" judicial review for certain agency determinations). See also National Audubon Society v. Hester, 801 F.2d 405, 407 [16 ELR 20940] (D.C. Cir. 1986) (reviewing court may not upset agency decision not to prepare an EIS unless arbitrary and capricious).

Under the arbitrary and capricious standard, the reviewing court's inquiry is limited to "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 [1 ELR 20110] (1971). The reviewing court must allow the agency to make decisions within the realm of its expertise, while insuring that arbitrary and capricious agency conduct does not go unchecked. Oregon Natural Resources Council, 104 L. Ed. 2d at 395.

B. National Environmental Policy Act

" [T]he National Environmental Policy Act . . . seeks to create a particular bureaucratic decisionmaking process, a process whereby administrators make important decisions with an informed awareness of how the decision might significantly affect the environment." Sierra Club v. Marsh, 872 F.2d 497 [19 ELR 20931] (1st Cir. 1989), citing Commonwealth of Massachusetts v. Watt, 716 F.2d 946 [13 ELR 20893] (1st Cir. 1983). The requirements of NEPA compel federal agencies to "take a hard look at environmental consequences. . . ." Robertson, 104 L. Ed. 2d at 370 (citations omitted). While NEPA does not compel an environmentally favorable result, Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 [10 ELR 20079] (1980), the Act does hope to focus agency attention on environmental concerns, thus "ensur[ing] that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Oregon Natural Resources Council, 104 L. Ed. 2d at 391 (citations omitted).

Section 4332 of NEPA provides in relevant part as follows.

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall . . .

(C) include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement . . . on —

(i) the environmental impact of the proposed action . . . .

Thus, while section 4332 requires that an agency prepare a EIS with regard to proposed environmentally significant federal action "to the fullest extent possible," section 4332 does not make completion of an EIS mandatory under all circumstances.⁶

Section 4331 of NEPA also acknowledges that other goals and interests of the United States may make strict compliance with NEPA impossible. "In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy . . ." to protect and conserve the environment. 42 U.S.C. § 4331(b). Thus, while Congress hoped to compel the considerations of environmental concerns in significant federal actions, Congress also recognized that "essential considerations of national policy" could prevent the meticulous application of NEPA. See Kleppe v. Sierra Club, 427 U.S. 390, 421 [6 ELR 20532] (1976) (Marshall, J. dissenting) (because NEPA is a "vaguely worded statute," courts have the responsibility to give meaning to NEPA provisions).

Similarly, the CEQ has promulgated a regulation that allows an agency to forego strict compliance with the EIS requirement in the event of an emergency. This regulation allows an agency to make "alternative arrangements" in response to emergency situations.

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council [CEQ] about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

40 C.F.R. § 1506.11.

Thus, the statutory language and the applicable CEQ regulations make clear that while NEPA ordinarily requires completion of an EIS or SEIS before a federal agency takes environmentally significant action, emergency circumstances may make completion of an EIS or SEIS unnecessary.

No party contends that a federal agency must develop an EIS under any and all circumstances. Rather, the parties disagree as to what constitutes an emergency sufficient to circumvent the EIS requirement. The CEQ and the Air Force find that the continuing and unstable predicament in the Middle East creates an emergency within the meaning of NEPA and section 1506.11. Defendants contend that the C-5As at Westover AFB carry a steady stream of equipment and personnel essential to military operations at home and abroad, and that disruption of the twenty-four hour operation could create unmanageable scheduling and supply problems. Plaintiff, on the other hand, contends that the CEQ and the Air Force err by characterizing the present Middle East crisis as an emergency under NEPA. Plaintiff argues that while an emergency may have existed prior to and during the war with Iraq, that emergency ended when the fighting ceased in March 1991. Plaintiff asserts that the Air Force's justifications for the nighttime flights, including transportation of cargo and personnel, and scheduling difficulties, do not constitute an emergency sufficient to bypass NEPA's EIS requirement. Thus, the issues can be stated as follows: (1) whether the Air Force acted arbitrarily can capriciously by conducting nighttime C-5A operations at Westover AFB without having completed a SEIS; and (2) whether CEQ acted arbitrarily and capriciously by interpreting NEPA and section 1506.11 to allow the Air Force to conduct nighttime C-5A operations without requiring a SEIS. If plaintiff fails to establish any factual disputes which, if resolved in plaintiff's favor, could result in a finding that the defendants acted in an arbitrary and capricious manner, the Court must grant summary judgment for defendants.

Neither the Court nor the parties have found First Circuit authority directly on point. However, a few federal courts have considered the requirements of NEPA in emergency situations. In Crosby, supra, the district court stated that "CEQ has been delegated the responsibility to implement the procedural requirements of NEPA,," and that CEQ properly "recognized the possibility that circumstances could arise that would make it impossible to comply with the rigorous obligations of NEPA." Id. at 1386. The court found that CEQ had the authority to "interpret the provisions of NEPA to accommodate emergency circumstances." Id. Therefore, the court held that the City of Detroit could, pursuant to the emergency provisions of NEPA and CEQ [22 ELR 20337] approval, utilize "alternative arrangements for environmental review outside the normal NEPA procedures." Id. at 1387. The court therefore allowed Detroit to complete an urban development project without strictly completing an EIS as ordinarily required.

Similarly, in Hester, supra, the Court of Appeals for the District of Columbia decided that the Wildlife Service, a federal agency, properly invoked the emergency provisions of NEPA in order to immediately remove endangered condors from the California wilderness. The Court of Appeals did not require the Wildlife Service to prepare an EIS before removing the condors from their natural environment. Rather, the court characterized as "manifestly defensible" the Wildlife Service's decision to take custody of the condors. Noting that CEQ had certified that an emergency existed, and that the Wildlife Service had considered the environmental impacts of the move, the court left undisturbed the agency's decision to take the condors without completing an EIS.

Given this case authority and the qualified language of NEPA, the Court must grant summary judgment in favor or defendants. The decision by CEQ and the Air Force that the crisis in the Middle East constituted an emergency for NEPA purposes cannot be called arbitrary and capricious. The affidavits of various Air Force officials depict a complex, global flight schedule that relies in large part on the twenty-four hour availability of Westover AFB's C-5A capabilities. Westover AFB is one of the few bases in the United States equipped to service, maintain, and supply C-5As, and one of only two C-5A staging bases in the United States for all Persian Gulf operations. Westover AFB handles almost all westbound C-5A traffic, just as Dover AFB in Delaware primarily handles eastbound traffic. The Air Force coordinates flights at Westover AFB with flights at Dover AFB and Stewart AFB in the United States, and with bases in Europe and the Persian Gulf. Disruption of the nighttime flight capabilities at Westover AFB would have significant and problematic impact on the Air Force's worldwide flight schedules. General Kross has stated that the unavailability of Westover AFB for nighttime C-5A flights would shift much of Westover AFB's current flight traffic to the Dover AFB or Stewart AFB, a burden that these bases could hardly manage. Dover AFB (like Westover AFB) is presently operating at near maximum capacity, and Stewart AFB lacks the airplane parking and other capabilities available at Westover AFB.

The C-5A operations furnish fuel, tools, spare parts, and other critical supplies to American and international troops in the troubled Middle East region. The C-5As also bring back to the United States, via Westover AFB, equipment and personnel essential to the maintenance of military readiness at home and broad. The Court finds that defendants could reasonably interpret the present crisis to be an emergency within NEPA, given the military's operational and scheduling difficulties and the hostile and unpredictable nature of the Persian Gulf region. The Air Force has not attempted to justify the nighttime C-5A operations by speaking vaguely of national security or world peace. Rather, defendants have pointed to specific military concerns with regard to troop redeployment, flight scheduling, cargo transport, and other operations that necessitate the use of Westover AFB for C-5A operations on a twenty-four hour basis. In short, the Court must hold that the Air Force and CEQ are not acting in an arbitrary and capricious manner by categorizing the instant situation as an emergency.

Furthermore, the CEQ and the Air Force have complied with section 1506.11 by making "alternative arrangements" for procedural compliance with NEPA. The Air Force, with the approval of CEQ, plans to complete an Environmental Assessment ("EA") by May 1991. While CEQ regulations ordinarily require an agency to prepare an EA to determine whether an EIS is necessary, 40 C.F.R. § 1508.9, the Air Force's EA will combine aspects of EIS and EA to suit the unusual situation at hand. The EA will analyze, among other things, alternative flight scheduling possibilities, noise impacts, and reduced nighttime operations, see Defendants' Memorandum at 12-13, and Letter of Dinah Bear, General Counsel at Council of Environmental Quality to Gary Vest, Deputy Assistant Secretary of the Air Force (March 19, 1991) (attached as Exhibit Twenty-three to Defendants' Memorandum), and the Air Force will provide for a period of public comment. Defendants' Memorandum at 13. The Court does not hold that the EA prepared by the Air Force is a substitute for an EIS. Indeed, the First Circuit Court of Appeals has foreclosed such a holding. Sierra Club I, 769 F.2d at 875. Rather, the Court finds only that the Air Force is taking alternative measures, in keeping with NEPA and CEQ regulations, to consider the environmental effects of the nighttime C-5A operations.

The Court sympathizes with the plight of Valley Citizen's members. Having considered the affidavits of numerous residents from the communities surrounding Westover AFB, the Court does not question the serious or debilitating nature of the disturbances caused by the nighttime C-5A flights. Even defendants concede that the current flights are "significant" within the meaning of NEPA. Defendants' Memorandum at 14. However, given the language of NEPA, and CEQ's interpretations of NEPA, the Court on this record can find no factual disputes which, if resolved in plaintiff's favor, could lead to plaintiff's success on the merits. Defendants did not, as a matter of law, act arbitrarily and capriciously in their interpretation or implementation of NEPA, or in deciding not to issue a SEIS. The Court therefore grants summary judgment in favor of defendants; a fortiori, the Court denies plaintiff's request for a preliminary injunction.

Should the Air Force terminate the nighttime C-5A flights on or about July 1991 and thereafter resume adhering to the conditions of the 1987 EIS, the Court expects that it will not be called upon again to resolve differences that may arise among these parties. However, if the summertime passes and the Air Force continues twenty-four hour C-5A operations, this Court will not hesitate to invoke, where necessary, all of the equitable powers at its disposal to protect Valley Citizens' members from continued nighttime disturbances.

IV. Conclusion

For the reasons stated above, the Court hereby GRANTS defendants' motion for summary judgment. The Court DENIES plaintiff's motion for preliminary injunction.

It is So Ordered.

1. Valley Citizens is a non-profit citizens association comprised of approximately 350 members. All members of the association live in communities bordering the Westover Air Force Base ("Westover AFB").

2. For the sake of convenience, the Court will hereinafter refer to each defendant according to the agency he represents. Thus, the Court will refer to defendants Rice and Vest as "Air Force," and defendant Deland as "CEQ."

3. To begin, the Court will consider the motion for summary judgment without reference to the motion for preliminary injunction. The Court takes this approach because the Court could not grant plaintiff a preliminary injunction if summary judgment were appropriate. See Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981) (to receive a preliminary injunction, plaintiff must prove inter alia a likelihood of success on the merits).

4. The CEQ must promulgate "binding regulations implementing the procedural provisions of NEPA." Robertson v. Methow Valley Citizens, __ U.S. __, 104 L. Ed. 2d 351, 372 [19 ELR 20743] (1989), citing Executive Order No. 11991, 3 C.F.R. 123 (1977) (Order of President Carter). These regulations appear at 40 C.F.R. 1500 et seq.

The CEQ also has a statutory obligation to interpret NEPA, and to advise the executive branch of its obligations under NEPA, 42 U.S.C. § 4344. Courts must accord "substantial deference" to CEQ's interpretations of NEPA. Andrus v. Sierra Club, 442 U.S. 347, 358 [9 ELR 20390] (1979).

5. Title 40 C.F.R. § 1502.9 provides that federal agencies shall prepare supplemental environmental impact statements if "(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Thus, while NEPA does not explicitly require SEISs, section 1502.9 does require an SEIS under certain circumstances. A SEIS serves the same objectives and analyzes the same criteria as an EIS. The two are different only in that the SEIS supplements an existing EIS, and ordinarily focuses on new or different information obtained subsequent to the original EIS.

6. In Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776 [6 ELR 20528] (1976), the Supreme Court construed the meaning of the phrase "to the fullest extent possible." The Supreme Court decided that the statutory language meant that federal agencies must strictly comply with the EIS requirements of NEPA unless such compliance would create an "irreconcilable and fundamental conflict" with another statutory obligation. Id. at 788. The Supreme Court characterized the phrase as "a deliberate command that the duty NEPA imposes upon the agencies to consider environmental factors not be shunted aside in the bureaucratic shuffle." Id. at 787.

The Court understands Flint to mean that where an agency has opposing legal obligations, it may forego strict compliance with NEPA. The Court will not read Flint as compelling an EIS under any circumstances except where statutory mandates conflict. Congress could not have intended NEPA to cripple the quick response capabilities of federal agencies where failure to take immediate action could result in dire consequences. The Court's reading of Flint appears consistent with section 4331 of NEPA and case authority from other jurisdictions. See Hestler, supra, and Crosby v. Young, 512 F. Supp. 1363 [11 ELR 20798] (E.D. Mich. 1981), as discussed infra at 11-12.