Westside Property Owners v. Schlesinger

No. Civ 75-26 PHX (WEC) (415 F. Supp. 1298, 10 ERC 1570) (D. Ariz. June 17, 1976)

ELR Digest

The court upholds the adequacy of the NEPA environmental impact statement on stationing the F-15 jet fighter plane at Luke Air Force Base. The base has been in operation since 1941 and has had jet planes for 25 years. After review of a draft and a public hearing, the final impact statement on stationing the F-15 at Luke was issued in 1974. Plaintiffs are owners of real proporty in the vicinity of the base who, in claiming damages for noise and air pollution and aircraft accidents, alleged a violation of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., ELR 41009, by attacking the adequacy of the environmental impact statement (EIS).

The appropriate standard of review is "reasonable compliance." Natural Resources Defense Council v. Morton, 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972); National Helium Corp. v. Morton, 455 F.2d 650, 1 ELR 20478 (10th Cir. 1971). Plaintiffs first alleged that the Air Force failed to use an interdisciplinary approach in its decisionmaking in violation of 42 U.S.C. § 4332(2)(A) which requires a "diligent research effort" reflecting "the current state of the art of relevant scientific discipline." Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 1 ELR 20207 (D.D.C. 1971). The court concludes, however, that the EIS, which included sections discussing the air quality, visual, noise, land use, and socioeconomic impacts, reflected the in-depth and comprehensive research required by NEPA. Secondly, plaintiffs asserted a violation of 42 U.S.C. § 4332(2)(C) because a national consulting firm assisted in the preparation of the EIS. The court finds no violation on this charge because some of the EIS preparation work may be delegated as long as the federal agency participates significantly and actively and bears the ultimate responsibility for the work product. Life of the Land v. Brinegar, 485 F.2d 460, 3 ELR 20811 (9th Cir. 1973, cert. denied, 416 U.S. 961 (1974). Thirdly, plaintiffs alleged that the failure to study properly the alternative of establishing a new Air Force Base at Gila Bend violated 42 U.S.C. § 4332(2)(D). Again rejecting plaintiffs' claim, the court notes that the study of alternatives is governed by the rule of reason and that every imaginable alternative need not be studied. Life of the Land v. Brinegar, supra; Natural Resources Defense Council, Inc. v. Morton, supra; Trout Unlimited v. Morton, 509 F.2d 1276, 5 ELR 20151 (9th Cir. 1974). Rather, responsible federal officials need only take a "hard look" as the environmental consequences of the various feasible alternatives, and, as revealed by the EIS, this was done here.

The EIS has two purposes: first, to provide decisionmakers with sufficient information whether to proceed with the project based on the environmental impacts, and second, to make available to the public information on the project's environmental impact and to encourage public participation in the development of that information. Trout Unlimited v. Morton, supra. Furthermore, judgments of project justification are not a matter for review in an action to consider the adequacy of a NEPA impact statement. Environmental Defense Fund v. Armstrong, 487 F.2d 814, 4 ELR 20001 (9th Cir. 1973). "The judiciary's principal role is to insure compliance with the required methodology, and not to provide a forum for the expression of substantive disagreements arising from the utilization of that methodology." 415 F. Supp. at 1303.

The full text of this opinion is available from ELR (8 pp. $1.00, ELR Order No. C-1091).

Counsel for Plaintiffs
Jeremy E. Butler
Lewis & Roca
First National Bank Plaza
100 West Washington St.
Phoenix AZ 85003
(602) 262-5311

Counsel for Defendants
Richard S. Allemann, Asst. U.S. Attorney
Room 5000, Federal Bldg.
230 North First Ave.
Phoenix AZ 85025
(602) 261-3011

Craig, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]