AVIATION NOISE LAW
Citizens Concerned About Jet Noise v. Dalton
Cite as: 48 F.Supp.2d 582


U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

CITIZENS CONCERNED ABOUT JET NOISE, INC., a Virginia non-stock corporation, Plaintiff,
v.
John H. DALTON, in his official capacity as Secretary of the Navy; and the United States of America, Defendants.

No. 2:98cv800

May 19, 1999


COUNSEL:

Jack E. Ferrebee, Denton & Ferrebee, PLC, Virginia Beach, VA, for plaintiff.

Susan L. Watt, Assistant United States Attorney, Norfolk, VA, Geoffrey Garver, U.S. Department of Justice, Environment and Natural Resources Division, General Litigation Section, Washington, DC, Robert Smith, U.S. Department of the Navy, Navy Litigation Office, Washington, DC, for defendants.


OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the court on cross-motions for summary judgment. For the reasons detailed herein, the court GRANTS defendants' motion for summary judgment and DENIES plaintiff's motion for summary judgment and permanent injunction. [FN 1]

[FN 1] At the hearing on the motions for summary judgment and permanent injunction, the court also heard evidence and argument on plaintiff's motion for a preliminary injunction. The court denied the motion for preliminary injunction at the conclusion of the hearing.
Plaintiff, Citizens Concerned About Jet Noise, Inc. ("CCAJN"), seeks to halt the transfer of 156 Navy F/A-18 "Hornet" aircraft from Naval Air Station ("NAS") Cecil Field to NAS Oceana, located in Virginia Beach, by challenging the adequacy of the Final Environmental Impact Study ("FEIS") produced by the Navy pursuant to the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C.A. 4321-70d. The court has federal question jurisdiction over this NEPA action under 28 U.S.C. 1331.


I. Factual Background

CCAJN is a Virginia non-stock corporation comprised of Virginia Beach and Chesapeake residents who live in the vicinity of NAS Oceana and Naval Auxiliary Landing Field ("NALF") Fentress. NAS Oceana is a designated Master Jet Base located within the corporate limits of Virginia Beach. NALF Fentress is located in the city of Chesapeake and is an auxiliary airfield used by Navy aircraft to practice carrier landings prior to overseas deployments aboard aircraft carriers. [FN 2] The members of CCAJN are residents of Virginia Beach and Chesapeake who live within the accident potential zones and noise corridors surrounding NAS Oceana and NALF Fentress. Although the corporation name specifically refers to "jet noise," the group's concerns are much broader, encompassing safety, air quality, economic and educational impacts, and property values, all of which were addressed in the challenge to the FEIS.

[FN 2] NALF Fentress is used by aircraft based at NAS Oceana and NAS Norfolk.
The origins of the FEIS challenged in this action date back to 1990. In that year, as part of the National Defense Authorization Act for fiscal year 1991, Congress passed the Defense Base Realignment and Closure Act of 1990 ("Base Closure Act"), Pub.L. No. 101-510 tit. 29, part A, §§ 2901 to 2910, 104 Stat. 1485, 1808-19, as amended (contained in 10 U.S.C. 2687 statutory notes), which provided a mechanism for identifying and authorizing the closure of military bases. The Base Closure Act established an eight-man Base Realignment and Closure ("BRAC") Commission to spearhead the closure process. The BRAC Commission received the closure recommendations made by each service branch, and, after reviewing those recommendations, made independent recommendations regarding the bases that should be closed. The BRAC Commission transmitted its recommendations to the President, who had only two options. The President could approve the entire BRAC report and send it on to Congress, or reject the report, thereby terminating the closure process for that cycle.

Once received from the President, Congress could either accept or reject the BRAC report in its entirety. If Congress did not reject the BRAC report within forty-five days, the Base Closure Act directed the Secretary of Defense to carry out all of the closure and realignment decisions in the BRAC report. In other words, if not rejected by Congress, the BRAC report became binding law on the Secretary of Defense. The Base Closure Act also mandated that realignment and closure actions be initiated within two years of the date the BRAC report was sent to Congress by the President, and that all closures and realignments be completed within six years of that date. The Base Closure Act mandated that the entire process be repeated three times, with the Commission's recommendations due to the President in 1991, 1993, and 1995.

Under the 1993 BRAC report, approved by both the President and Congress, the Secretary of Defense was directed to close the Master Jet Base at NAS Cecil Field, outside of Jacksonville, Florida, and distribute the air assets from NAS Cecil Field to other bases. The 1993 report specifically directed that the Navy transfer all of the F/A-18 aircraft at NAS Cecil Field to Marine Corps Air Station ("MCAS") Cherry Point, North Carolina. Two years later, however, in the 1995 BRAC report, that decision was changed. The 1995 BRAC report redirected the F/A-18 aircraft to "other naval air stations, primarily [NAS], Oceana, Virginia; [MCAS], Beaufort, South Carolina; [NAS] Jacksonville, Florida, and [NAS] Atlanta, Georgia; or other Navy or Marine Corps Air Stations with the necessary capacity and support infrastructure." Defense Base Closure and Realignment Commission, 1995 Report to the President, at 1- 50. Not only was MCAS Cherry Point not even listed as a "primary" receiving site, but the 1995 BRAC report also did not delineate the new location of the F/A-18s, leaving that decision to be made by the Navy. The 1995 BRAC report became binding law after its recommendations were accepted by both the President and Congress.

The 1995 BRAC Commission redirected the F/A-18s because "the accelerated retirement of the A-6E aircraft at NAS Oceana creates a vacancy in existing facilities. This redirect uses this capacity and avoids substantial new construction at MCAS Cherry Point, North Carolina." Id. (emphasis added). This reasoning tracks with the justification offered by the Department of Defense ("DOD"), which requested the redirect in order to avoid adding to existing excess capacity. Thus, between the DOD and the BRAC Commission, it is clear that the overriding concern of the 1995 BRAC recommendation was to use the excess capacity already in existence, especially at NAS Oceana, before building new and extensive facilities at an air station without substantial excess capacity.

The 180 F/A-18s stationed at NAS Cecil Field are assigned to eleven fleet squadrons (twelve aircraft per squadron) and one Fleet Replacement Squadron ("FRS") (forty-eight aircraft squadron). The FRS trains new pilots in the F/A-18 aircraft before the pilots are assigned to fleet squadrons. The fleet squadrons deploy aboard aircraft carriers homeported in Norfolk, Virginia, and Mayport, Florida. These carriers deploy in the Atlantic Ocean and Mediterranean Sea for six-month periods. Prior to these extended deployments, the carriers and their complements of aircraft conduct training in operational areas off the Atlantic seaboard. In addition, when not deployed aboard the carriers, the F/A-18 squadrons are required to maintain a rigorous training schedule that requires training areas for air-to-air and air-to-ground operations, as well as airfields for practicing carrier landings prior to deployments. The aircraft also have periodic maintenance requirements that cannot be met by the squadron maintenance personnel, but, instead, must occur at an Aviation Intermediate Maintenance Depot ("AIMD").

With these operational considerations in mind, the Navy developed screening criteria designed to satisfy the 1995 BRAC mandate that the F/A-18s be transferred to stations with the "necessary capacity and infrastructure." FEIS at 2.1-1. The capacity analysis paralleled the methodology of the BRAC process by focusing on available aircraft hangar modules as the main indicator of excess capacity at a particular airfield. Id. at 2.1-2. The Navy's infrastructure analysis evaluated the runway capacity (number and length), as well as maintenance, training, and other support infrastructure at each base. Id. at 2.2-1 to 2.1-6. Finally, the operational analysis accounted for the myriad of F/A-18 training requirements, including access to training ranges within 100 miles of the receiving installation, airspace availability, access to auxiliary fields within fifty miles of the receiving installation for Field Carrier Landing Practice ("FCLP"), and other combat readiness criteria. Id. at 2.2-7 to 2.2-10.

After applying these screening criteria to twenty eastern seaboard Navy and Marine Corps Air Stations, the Navy determined that only three, NAS Oceana, MCAS Cherry Point, and MCAS Beaufort, had sufficient excess capacity and the necessary infrastructure to support F/A-18s. Id. at 2.1-12. Following a total of seven public "scoping" meetings, the Draft Environmental Impact Statement ("DEIS") was distributed on September 19, 1997.

The draft identified five Alternative Realignment Scenarios ("ARSs") that were under consideration. ARS 1, the only single-site alternative developed, placed all of the aircraft at NAS Oceana. ARS 2 maximized use of existing capacity at two air stations by placing nine squadrons and the FRS at NAS Oceana and two squadrons at MCAS Beaufort. ARS 3 also maximized use of existing capacity at two air stations by placing eight squadrons and the FRS at NAS Oceana and three squadrons at MCAS Cherry Point. ARS 4 placed five squadrons at MCAS Beaufort, requiring an expansion in capacity, and six squadrons plus the FRS at NAS Oceana, which utilized all the capacity there. ARS 5 placed five squadrons at MCAS Cherry Point, also requiring an expansion in capacity, and six squadrons and the FRS to NAS Oceana, again using all existing capacity. ARS 5 was identified in the Record of Decision ("ROD") as the "environmentally preferred alternative."

Seven public hearings were held on the DEIS and public comment was accepted through December 2, 1997. In light of the comments received, the Navy made a number of changes to the DEIS and made the FEIS available for public comment on March 20, 1998. The FEIS identified ARS 1 as the Navy's preferred alternative, primarily for operational reasons related to the Navy's national defense mission. The comment period was held open for thirty days, until April 20, 1998. On May 18, 1998, the ROD selected ARS 2, which sent nine squadrons and the FRS to NAS Oceana, and two squadrons to MCAS Beaufort.

In accordance with the Base Closure Act, preparations to close NAS Cecil Field had already begun by the time the 1995 BRAC report changed the receiving site for the F/A-18s from MCAS Cherry Point to a new location selected by the Navy. Because NAS Cecil Field was first selected for closure in the 1993 BRAC report, the six-year deadline expires at the end of fiscal year 1999, and most, if not all, funding for the base ceases after that time. Preparations to close NAS Cecil Field continued during the Navy's selection process of a new receiving site for the F/A-18s. Because the F/A-18 relocation must be completed less than two years after the ROD was issued, the Navy moved quickly to implement the decision. In fact, in their briefs before the court, both parties agree that the first contract for new construction at NAS Oceana was awarded on the same day the ROD was signed, with two more contracts following soon thereafter. On December 4, 1998, the first two squadrons of aircraft flew into NAS Oceana. The remaining squadrons are scheduled to move to NAS Oceana during 1999, either directly or upon return from a six-month fleet deployment. [FN 3]

[FN 3] A number of squadrons will not be arriving at NAS Oceana until the year 2000, but these are squadrons that are returning from deployments begun in 1999. The fact remains that essentially all F/A-18 aircraft will have left NAS Cecil Field by the end of 1999.
Plaintiff filed this lawsuit on July 15, 1998, requesting permanent injunctive relief. On November 24, 1998, plaintiff filed a motion with the court for a preliminary injunction and also for summary judgment. In response, defendants also moved for summary judgment, and, following full briefing on the issues, a hearing was held before the court on January 13, 1999.


II. The NEPA Framework and Standard of Review

NEPA does not impose any substantive requirements on federal agencies. Instead, NEPA is only a procedural mechanism that serves to ensure the agency "considered environmental concerns in its decision making process." Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). NEPA does this by requiring preparation of an environmental impact statement ("EIS") for any major federal action that significantly affects the quality of the "human environment." 42 U.S.C. 4332(2)(c). The "heart" of the EIS is the alternatives analysis, which "should present the environmental impacts of the proposal and the alternatives in comparative form." 40 C.F.R. 1502.14. The regulations require the agency to "evaluate all reasonable alternatives" and discuss the reasons for the elimination of alternatives from the study, id. at § 1502.14(a), as well as mitigation efforts related to each alternative. Id. at § 1502.14(f). The agency is then required to describe the affected environment in sufficient detail "to understand the effects of the alternatives." Id. at § 1502.15. Finally, 40 C.F.R. 1502.16 requires the agency to conduct a detailed examination of the environmental consequences on the affected environment, including direct and indirect effects and their significance, the environmental effects of the alternatives, and mitigation measures to the extent they were not covered under the alternatives analysis.

Significantly, the Supreme Court has held that the NEPA process does not mandate a particular outcome, but only describes the process necessary to reach an informed decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In fact, "[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Id. at 350, 109 S.Ct. 1835. In other words, the agency is free to take the most environmentally costly course of action or alternative, so long as the environmental impact is fully identified in the EIS and the agency determines that "other values" outweigh the impact on the environment. Moreover, the NEPA regulations clearly anticipate that an agency will have a preferred alternative, perhaps even a specific proposal, going into the EIS process. See 40 C.F.R. 1502.2(g) (stating that an EIS "serve[s] as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made") (emphasis added); id. at § 1502.4(a) ("Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.").

An agency's decision may be based on "factors including economic and technical considerations and agency statutory missions," as well as "any essential considerations of national policy which were balanced by the agency." Id. at § 1505.2(b). The agency must also evaluate "reasonably foreseeable significant adverse effects on the human environment," which are known as the cumulative impacts. Id. at §§ 1502.22 and 1508.7 (latter section defining cumulative impact as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency ... or person undertakes such other actions").

The standard for judicial review is whether the agency decision, in view of the FEIS, was arbitrary and capricious, an abuse of discretion, or not in accordance with the law. Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1024 (4th Cir.1975). The Fourth Circuit has also emphasized the Supreme Court's admonition that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (quoted in Fayetteville Area Chamber of Commerce, 515 F.2d at 1024).


III. Discussion

In support of its motion for summary judgment, plaintiff makes numerous arguments challenging the reasonableness and adequacy of the FEIS: (1) the alternatives analysis was inadequate because it did not consider other reasonable alternatives; (2) the noise analysis was not adequate because it did not fully assess the costs to the community from the higher noise levels associated with the F/A-18s; (3) the cost-benefit analysis also failed to account for costs to the community of private and public noise mitigation efforts that would be required under the analyzed ARSs; (4) the safety risk was not analyzed; (5) there were errors and omissions in the air quality analysis; (6) the FEIS failed to address practical mitigation measures with the potential to reduce the otherwise unavoidable adverse impact of jet noise at NAS Oceana; (7) the FEIS contained a flawed environmental justice analysis; and (8) the FEIS failed to address foreseeable adverse environmental impacts as required by NEPA by not addressing the cumulative impact of the future replacement of F-14 and F/A-18 C/D aircraft with the F/A-18 E/F. Finally, plaintiff also makes a general attack on the Navy's NEPA process, arguing that the Navy deliberately deceived the public through feigned compliance with NEPA's requirements.

From the briefs, case law, and an examination of the lengthy administrative record, however, the court finds that there is no basis in fact or law for plaintiff's arguments.


A. The Navy's Interpretation of 1995 BRAC Commission Report

An important threshold question to be answered in this case concerns the Navy's interpretation of the 1995 BRAC law. The Navy rightly viewed the 1995 BRAC report as restricting the alternatives to be considered under the EIS. For example, the Navy obviously could not choose as an alternative the option of single-siting all F/A-18s at MCAS Cherry Point, which was the 1993 BRAC recommendation explicitly rejected by the 1995 BRAC report.

In developing the screening criteria used to winnow the field of potential recipient air stations, the Navy based those criteria on the 1995 BRAC recommendations, as well as important operational considerations, such as F/A- 18 training and maintenance requirements. Significantly, although plaintiff challenges the Navy's use of NAS Oceana in every ARS, plaintiff does not challenge the selection criteria used by the Navy to winnow the list of twenty air stations down to three. In fact, at oral argument, plaintiff conceded that the Navy's use of these criteria was reasonable. In addition, the administrative record is clear that the screening criteria were developed in a reasonable manner, taking into account important operational and safety criteria related to military aircraft operations. Administrative Record ("AR") 29572-77. The court finds that the Navy's development of screening criteria was a reasonable interpretation of the 1995 BRAC report. The Navy also viewed the 1995 BRAC report as requiring the Navy to fully utilize the excess capacity at NAS Oceana, making it both reasonable and necessary to include NAS Oceana as part of every alternative. The 1995 BRAC recommendations specifically mention twice the excess capacity at NAS Oceana and lists NAS Oceana at the top of the list of air stations with the "necessary capacity and support infrastructure," to handle the transfer of aircraft from NAS Cecil Field. Defense Base Closure and Realignment Commission, 1995 Report to the President, at 1-50. Furthermore, it is undisputed that NAS Oceana had significantly more excess capacity available than MCAS Beaufort and MCAS Cherry Point combined. NAS Oceana had sufficient excess hangar capacity to accommodate eight fleet squadrons, FEIS at 2.2-15, while MCAS Beaufort and MCAS Cherry Point together could only accommodate five fleet squadrons. FEIS at 2.2-19; id. at 2.2-26. Accordingly, the Navy's interpretation of the 1995 BRAC report was reasonable and the Navy did not act arbitrarily and capriciously by including NAS Oceana in every ARS.


B. Adequacy of the FEIS

1. Alternatives Analysis

Plaintiff first claims that the FEIS is fatally flawed because the Navy did not conduct a searching inquiry into alternatives as required by NEPA. See Natural Resources Def. Council v. United States Dep't of Navy, 857 F.Supp. 734 (C.D.Cal.1994). Plaintiff challenges the alternatives analysis on a number of specific grounds. Initially, plaintiff faults the Navy for considering NAS Oceana as the only single-site option. Plaintiff claims that the Navy was unreasonable in its decision not to examine single-siting the aircraft at either MCAS Beaufort or MCAS Cherry Point. Plaintiff also argues that none of the scenarios contemplated placing less than fifty percent of the aircraft at NAS Oceana.

Contrary to plaintiff's assertion, the FEIS makes it quite clear that these options were considered by the Navy. However, the FEIS also indicates that these alternatives were eliminated from detailed analysis because of either the mandates contained in the 1995 BRAC report, or the Navy's operational requirements. See FEIS at 2.6-1 to 2.6-8 (describing alternatives considered but rejected for detailed analysis and discussing the reasons for elimination).

With regard to single-siting at locations other than NAS Oceana, as the Navy correctly points out, single-siting the F/A-18s at MCAS Cherry Point was foreclosed by the BRAC process. This single-site option was the specific recommendation of the 1993 BRAC report, despite the fact that the relocation would involve significant construction at MCAS Cherry Point due to the lack of excess capacity there. Two years later, though, the 1995 BRAC report specifically disavowed the MCAS Cherry Point single-site option precisely because of the excess capacity issue. Thus, as concluded above, the Navy's decision not to consider this alternative for detailed analysis was not only reasonable, but was also virtually mandated by law.

Likewise, the Navy's decision not to consider any form of single-siting all the F/A-18s at MCAS Beaufort was also based on a reasonable interpretation of the 1995 BRAC report. The 1995 BRAC report specifically mentioned the significant excess capacity available at NAS Oceana due to the accelerated retirement of A-6s previously based there. The report further emphasized the importance of NAS Oceana as a result of this excess capacity by listing it first in the list of illustrative alternatives for receiving the F/A-18s. The Navy argues that single-siting the F/A-18s at MCAS Beaufort would leave all of the excess capacity at NAS Oceana unused. As noted earlier, it is undisputed that NAS Oceana has far more excess capacity than MCAS Beaufort and MCAS Cherry Point combined, much less MCAS Beaufort alone. Given these facts, in addition to the fact that the court has already found the Navy's interpretation of the 1995 BRAC report to be reasonable, the court finds that the Navy's decision to consider only NAS Oceana as a single-site alternative was not arbitrary and capricious.

In fact, the Navy's reasonable interpretation of the 1995 BRAC report also supports the decision to include NAS Oceana as part of every ARS developed. By far the overriding criteria in using NAS Oceana under every ARS was the fact that it had the most excess capacity and support infrastructure of the three air stations that survived the screening process, which process is not challenged by plaintiff.

Plaintiff next argues that the Navy erred by not considering any alternatives that placed less than fifty percent of the aircraft at NAS Oceana. Again, however, given the amount of excess capacity present at NAS Oceana, the Navy's alternative analysis was consistent with the 1995 BRAC report, and, therefore, reasonable. [FN 4] The Navy, contrary to plaintiff's assertions, also considered dividing the aircraft between the three bases. This alternative was rejected for detailed analysis because, although utilizing excess capacity at all three bases, it resulted in prohibitively high costs. AR 29578; FEIS at 2.6-3 to 2.6-6. The triple-basing alternative would have required separate maintenance and training facilities at all three bases, resulting in significant one-time costs. FEIS at 2.6-5. In addition, there were also problems related to operational readiness because the East Coast F/A-18 community would be widely dispersed, resulting in a loss of the synergy that occurs when all the squadrons in a particular community are located together, as the F/A-18s were at NAS Cecil Field. FEIS at 2.6-6. For similar training and operational reasons, the Navy also decided that no alternative should be pursued that resulted in the separation of the Fleet Replacement Squadron ("FRS") from the majority of the active duty squadrons. FEIS at 2.6-6 to 2.6-8. The findings in the FEIS are amply supported by the administrative record, which indicates that the Navy reviewed three separate triple-siting possibilities with onetime costs ranging from $101 million to $233 million. [FN 5] AR 29588-96. Moreover, the administrative record also reveals that no Navy tactical jet aircraft has ever been based at three separate locations, with the attendant tripling of support personnel and equipment costs, maintenance costs, and operational complexities. AR 29598-602. The Navy was reasonable in not considering the triple-siting alternative in the FEIS.

[FN 4 Plaintiff attempts to find fault with the Navy's analysis by arguing that under every ARS developed by the Navy, excess capacity at either MCAS Beaufort or MCAS Cherry Point is unused. This argument, however, is completely inconsistent with the alternatives proposed by plaintiff which either do not use all of the excess capacity at one or more bases (single-siting at MCAS Beaufort or MCAS Cherry Point, or the "NAS Beaufort" alternative), or leave a more substantial amount of excess capacity than under the ARSs proposed by the Navy (siting less than fifty percent at NAS Oceana).

[FN 5] These estimates were the costs required over and above the costs of the "baseline scenario," which placed all the F/A-18 aircraft at NAS Oceana.

Plaintiff also claims that the Navy erred in its development of alternatives by relying exclusively on cost considerations and not accounting for environmental considerations. In this regard, plaintiff first claims that the Navy failed to consider other "reasonable" alternatives that complied with the BRAC mandates while also having a less adverse effect on the environment than any of the ARSs developed by the Navy. In particular, plaintiff claims that the Navy should have considered consolidating the Marine Corps aircraft from MCAS Beaufort to MCAS Cherry Point, and then moving the F/A-18s to what would then be called "NAS Beaufort." Plaintiff claims that this plan also utilizes all of the excess capacity at two of the three air stations, while also substantially reducing the environmental impact in the areas around NAS Oceana and NALF Fentress, where more people are affected by higher noise levels than around the other two bases.

As the administrative record reveals, this alternative was also considered during the preparation of the EIS. AR 29735; AR 24196. After the publication of the DEIS, plaintiff questioned the Navy about the possibility of this "NAS Beaufort" alternative. As the FEIS reveals, the Navy rejected this alternative because the BRAC process did not give the Navy the authority to create capacity by shifting assets between bases. FEIS at 2.6-8. The Base Closure Act limits the applicability of NEPA to actions taken as part of the BRAC process. In particular, the Base Closure Act states that when applying NEPA as part of the BRAC process, the Navy does not have to consider "military installations alternative to those recommended or selected." Base Closure Act, § 2905(c)(2)(B)(iii). The Navy relies on this section for its rejection of the "NAS Beaufort" alternative. Under the Navy's interpretation, the complex rearrangement of aircraft assets between bases, along with the redesignation of bases, was the exclusive purview of the 1995 BRAC commission. The Navy's mandate under the 1995 BRAC report with respect to the F/A-18s was to identify a receiving base for the relocation, and did not contemplate moving Marine Corps aircraft from one base to another in an effort to create capacity to receive the F/A-18s. Adding increased weight to this argument is the very specific language in the 1995 BRAC report discussing the excess capacity available at NAS Oceana. Implementation of the "NAS Beaufort" alternative would leave the excess capacity at NAS Oceana unutilized. Accordingly, the court finds that the failure to fully analyze the "NAS Beaufort" alternative proposed by plaintiff was not arbitrary and capricious, but, instead, was based on reasonable interpretations of the Base Closure Act and the 1995 BRAC report.

Finally, plaintiff claims that the Navy did not consider environmental factors as it developed the ARSs. Plaintiff, however, does not direct the court to any statutory, regulatory, or case law authority that requires an agency to take environmental factors into account in the development of alternatives. The Navy correctly points out that to require detailed consideration of environmental factors during development of alternatives would lead to a reductio ad absurdum. Essentially, plaintiff's argument would require the Navy to complete a separate EIS in order to determine the alternatives to be included in the actual EIS. The NEPA process is not designed to ensure that the most environmentally friendly alternatives are presented to the decisionmaker. Instead, when correctly done, NEPA presents the environmental impact of the chosen alternatives to the decisionmaker so that he may be properly informed of the environmental consequences of his action. 40 C.F.R. 1502.14.

Plaintiff claims that because environmental impact was one of the selection criteria for the BRAC process, the Navy was also required to use it in selecting alternatives. This argument fails to account for the fact that the BRAC Commission was not subject to the provisions of NEPA in selecting facilities to receive relocating functions or assets. Base Closure Act, § 2905(c)(1). Moreover, environmental impact was only one of eight criteria that the Commission could use in selecting installations to close or to receive relocated functions. Memorandum in Reply to Defendants' Brief in Opposition to Motion for Preliminary Injunction and in Answer to Motion for Summary Judgment, Exhibit 8, at 1. [FN 6] Therefore, to the extent that the Navy's selection of alternatives is analogous to the Commission's responsibility to select installations to receive assets, the Navy is entitled to use operational, nonenvironmental criteria in selecting the receiving site for the F/A-18s.

[FN 6] Exhibit 8 is a portion of the Executive Summary of the Defense Base Closure and Realignment Commission 1995 Report to the President.
The more important point to be made in this regard, however, is the role of the Navy in selecting alternatives and the role of the BRAC Commission are not analogous. Environmental impact was included as a selection criteria for the Commission precisely because its selection decisions with regard to closure and realignment were not subject to NEPA. The same is not true of the Navy, even when, in this case, it is basically carrying out a function delegated by the Commission. The key difference is that the Navy's selection of alternatives is ultimately subject to the exhaustive requirements of NEPA. Thus, it is not important that the Navy used only operational criteria in arriving at the alternative scenarios. Instead, the important fact is that, once developed, the alternatives were subjected to an environmental impact analysis whose comparative results were used to ensure that the decisionmaker was properly informed as to the results of his decision.


2. Noise Analysis

Plaintiff expends a great deal of effort in disputing the noise analysis contained in the FEIS. Plaintiff describes the adverse noise effects in great statistical detail. To list some examples, plaintiff describes the large increase in flight operations, both day and night, near NAS Oceana and NALF Fentress from 1997 to 1999 as a result of the relocation; the significant increases in the number of residents in high noise zones; the increase in the number of public schools located in high noise zones; the huge increases, in some cases as much as 300%, in average perceived sound loudness in the twenty- two public schools located within the high noise zones; and the specific and detailed increase in decibel ("dB") level at each school in the high noise zones. The problem with this approach is that every single number cited by plaintiff comes directly from the FEIS. Thus, it is clear that the FEIS more than adequately informed the decisionmaker of the significant adverse noise consequences for the human environment resulting from the relocation of F/A-18s to NAS Oceana. Plaintiff's noise arguments basically constitute a dispute over non-material matters, Dubois v. Department of Agric., 102 F.3d 1273, 1287 (1st Cir.1996) (stating that agency action should not be disturbed based on "inconsequential or technical deficiencies"), or matters best left to agency discretion. See Valley Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 469 (1st Cir.1989) (Breyer, J.) (stating that it is within the agency's discretion "to determine proper testing methods").

The FEIS analyzes noise effects in considerable detail. For each of the three air stations examined in the ARSs, the Navy developed noise contours based on projected air operations at each field following the relocation. The Navy then compared these contours with historical noise contours at each field. For instance, for NAS Oceana, the Navy compared the post-relocation contour ("the 1999 noise contour") with a noise contour developed from known air operations at the field in 1997. The Navy also compared the 1999 noise contours with the contours contained in the 1978 Air Installation Compatible Use Zone ("AICUZ"), which was developed as part of a program established in the 1970s to address community noise and safety impacts. [FN 7] By comparing each of these sets of contours around NAS Oceana, the Navy determined the increase in population living within the new, 1999 noise contours compared to the older noise contours. [FN 8]

[FN 7] The AICUZ contours for each air station were developed in different years, but the Navy conducted a proper comparative analysis despite this disparity because the Navy also developed 1997 contours for each station. The comparison of the 1999 noise contours with the 1997 contours provided a consistent basis of comparison between the three air stations. The Navy's comparison of the 1997 contours and the older AICUZ contours at each station was provided merely to demonstrate the historical change in operations at each air station.

[FN 8] For NAS Oceana and NALF Fentress under ARS 2, the Navy determined that there would be 45,852 more people within Noise Zone Two (65 to 75 dB) in 1999 than in 1997, but only 18,486 more people than in 1978. For Noise Zone Three (75 dB or greater), there would be 46,781 more people exposed to that level of sound in 1999 than in 1997, but, again, only 14,668 more people than in 1978. The greater difference between 1999 and 1997 compared to 1999 and 1978 is attributable to a substantial decrease in flight operations between 1978 and 1997 as a result of the retirement of the A-6 aircraft that were based at NAS Oceana until 1996.

According to plaintiff, the Navy's noise analysis erred in two respects, resulting in an understatement in the FEIS of the number of people affected by the increase in area covered by Noise Zone Two (65 to 75 dB Ldn [FN 9]) and Noise Zone Three (75 dB Ldn or greater). Plaintiff first faults the Navy for using 1990 census data in its noise study when more accurate 1996 population data was available for the City of Virginia Beach. Plaintiff also claims that the noise contours themselves are erroneous because they fail to consider deviations from flight patterns and do not count certain types of aircraft operations, such as air show practices, helicopter operations and transient aircraft operations.
[FN 9] Ldn is the day-night average sound intensity averaged over a twenty-four hour period. As even plaintiff acknowledges, Ldn "is used to define sound level contour, i.e. Noise Zones." Plaintiff's Opening Brief at 17 n. 9.
As the Navy correctly points out, although the administrative record indicates that 1996 population data was available for Virginia Beach and Chesapeake, there is no indication that comparable figures were available for the geographic areas around MCAS Beaufort and MCAS Cherry Point. Without such information, the Navy could not reasonably carry out an accurate comparison between the noise effects on the three sites as NEPA requires. In addition, by not providing any estimates of the comparable population figures for 1996 around MCAS Beaufort and MCAS Cherry Point, plaintiff is unable to point to any environmental significance accruing to the Navy's failure to use available 1996 population figures for Virginia Beach. Moreover, use of the 1996 Virginia Beach and Chesapeake population numbers, without comparable data for the areas surrounding the other two air stations, exaggerates the already large difference in affected population between areas around NAS Oceana/NALF Fentress and MCAS Beaufort or MCAS Cherry Point. The court finds that the Navy's consistent use of 1990 census figures in the FEIS was reasonable, and accurately represented the scope and magnitude of the difference in noise effects on the areas surrounding each air station. See Citizens Comm. Against Interstate Route 675 v. Lewis, 542 F.Supp. 496, 554-55 (S.D.Ohio 1982) (holding that it is reasonable to use old population data, even when more recent numbers are available, absent some showing of environmental significance of failure to use more recent data); Minnesota Pub. Interest Research Group v. Adams, 482 F.Supp. 170, 176 (D.Minn.1979) (same).

Likewise, the court finds that plaintiff's arguments regarding the size of the 1999 noise contours are unfounded. Plaintiff argues that the aircraft landing patterns used in the noise contour analysis are too difficult to be flown by pilots flying in and out of NAS Oceana, resulting in substantial deviations from flight path centerlines and an expansion in the actual sound contours. However, this argument is belied by plaintiff's own evidence. At the January 13, 1999, hearing on the preliminary injunction, plaintiff offered the testimony of one of its members, Herbert A. Stokely, a retired Navy pilot who had flown in and out of NAS Oceana while on active duty at NAS Norfolk. Stokely testified on direct examination that "aircraft can indeed fly the patterns at [NAS] Oceana." Stokely also testified that an aircraft could "easily" stay within the flight patterns that were used in the noise analysis and for the development of Accident Potential Zones ("APZs"). Stokely also admitted that a possible reason for the difference in the size of the patterns flown at NAS Oceana and NALF Fentress is the fact that there are typically more aircraft in the landing pattern at Fentress than at Oceana, because of the Field Carrier Landing Practice ("FCLP") that occurs at NALF Fentress.

The FEIS also addressed plaintiff's contention directly. The FEIS recognizes the aircraft will not always fly on the centerline used to conduct the noise analysis. Instead, "[a]ctual patterns may vary due to type of aircraft, aircraft weight, aircrew technique, number of aircraft in the pattern, wind, etc." FEIS at 3.1-1. Moreover, unlike plaintiff's argument, the FEIS does not limit these reasons to differences that will occur only at NAS Oceana. Instead, because these are variables that occur at every airfield, it is clear to the court that, to the extent there will be some minor differences in the actual noise contours compared to the model contours, the differences will also occur at MCAS Beaufort and MCAS Cherry Point. [FN 10] In this regard, plaintiff's repeated emphasis on the adverse environmental effects at NAS Oceana is misplaced. The important point for determining whether the FEIS was arbitrary and capricious is that the same methodology was used at each airfield, allowing the same variables to occur at each location. NEPA does not impose a requirement that the environmental impact analysis be perfect, only that the decisionmaker has sufficient information to accurately compare the environmental effects of the various alternatives. Dubois, 102 F.3d at 1287. Here, by using the same methodology to arrive at the noise contours at each air station, and recognizing that there are uncontrollable variables that will not allow the actual contours to mirror the ideal, the FEIS properly represented the relative impact of increased noise on the populations surrounding the three air stations. [FN 11]

[FN 10] The testimony of Mr. Stokely did not take these variables into consideration. Instead, his testimony concerned the feasibility of flying the centerline pattern in the absence of these variables.

[FN 11] Plaintiff's argument that the noise contours are not accurate because the FEIS fails to account for certain irregularly staged events, such as air show practices and transient aircraft operations, fails for much the same reason. These irregular, hard to track operations were not included in the analysis at any of the air stations. Moreover, as the Navy correctly points out, it is unclear that they occur with sufficient frequency as to cause a significant impact on the noise analysis.

Plaintiff next claims that the noise analysis methodology employed in the FEIS did not accurately portray the noise effects on the areas surrounding the air stations. Specifically, plaintiff questions the Navy's heavy reliance on the day-night average sound level metric (Ldn). Plaintiff claims that the use of Ldn does not accurately portray the noise impact on the population and sensitive noise areas, such as public schools and churches. According to plaintiff, using averages, such as Ldn and Leq, [FN 12] does not account for the noise impact resulting from single noise events. Instead, plaintiff claims that the FEIS analysis should have focused more on the noise impact of single noise events by using the Sound Exposure Level ("SEL") metric. Plaintiff also faults the FEIS for failing to discuss the impact of sound levels associated with single noise events on education and learning in the schools located near NAS Oceana and NALF Fentress, as well as the disruption of sleep patterns.
[FN 12] Leq is the equivalent noise level metric for a portion of the twenty-four hour period measured by the Ldn noise metric. As used in the FEIS, Leq measured the average sound level during the school day from 7:00 a.m. to 4:00 p.m. FEIS at 4.8-4. Use of Leq presented a more accurate picture of the sound levels experienced in public schools because the 10 dB penalty for nighttime flights was then not considered.
Courts have consistently held that the choice of scientific methodology used in an EIS is within the sound discretion of the agency. Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 578 (9th Cir.1998); Communities, Inc. v. Busey, 956 F.2d 619, 623 (6th Cir.1992); Sierra Club v. United States Dep't of Trans., 753 F.2d 120, 128 (D.C.Cir.1985). More precisely, numerous courts have approved the use of the exact sound methodology used in this case, while rejecting the exact argument that plaintiff makes here. Morongo Band of Mission Indians, 161 F.3d at 578 (approving use of Ldn methodology and rejecting argument that FAA was required to consider single-event noise levels); Communities, Inc., 956 F.2d at 623 (holding that there was no requirement for FAA to go beyond the Ldn cumulative noise impact methodology); Valley Citizens, 886 F.2d at 468-69 (acknowledging that the cumulative impact methodology is the standard methodology used by all federal agencies, mainly because there is no other viable methodology that yields as complete a picture of the overall noise impacts); Sierra Club v. United States Dep't of Trans., 753 F.2d at 128 (rejecting argument that failure to use single event noise analysis instead of, or in addition to, cumulative noise methodology was unreasonable). Therefore, plaintiff has failed to demonstrate that the Navy's "decision to rely on average noise levels, rather than single- event noise impacts, was arbitrary or capricious." Morongo Band of Mission Indians, 161 F.3d at 579.


3. Cost-Benefit Analysis

Plaintiff claims that any cost-benefit analysis based on the information contained in the FEIS was erroneous because the FEIS, while it projected enormous economic benefits to the communities surrounding NAS Oceana and NALF Fentress, failed to disclose significant costs to the community. Specifically, plaintiff claims the Navy knew that residential and school attenuation costs were upwards of $1.6 billion, but refused to disclose this fact in the FEIS. Plaintiff also claims that the Navy failed to adequately disclose and discuss the adverse economic impact of aircraft noise on property values.

With respect to the question of attenuation costs, the Navy raises a two-fold argument. First, the Navy argues that because it does not have authority to expend federal funds on private and local government mitigation projects, there is no requirement to discuss those costs in the FEIS. The Navy correctly points out that plaintiff supports its argument with an improper analogy to the FAA. The FAA has received authority from Congress to expend federal funds on noise mitigation at private residences and sensitive noise receptors as part of the FAA's consideration of airport construction or expansion projects. Unlike the FAA, the Navy has no such authority. Thus, the Navy properly concluded that when no federal funds would be expended in private mitigation efforts, there was no need to include those costs as part of its cost-benefit analysis. See Methow Valley Citizens Council, 490 U.S. at 352-53, 109 S.Ct. 1835 (holding agency did not have to submit fully developed mitigation plan or receive assurance that mitigation would occur before proceeding with proposed action where mitigation measures were completely within jurisdiction of state and local governments). That said, however, the Navy did not completely ignore the consequences of the transfer of the F/A-18s on the local community.

The FEIS explicitly acknowledges that the transfer will have a significant noise impact on the surrounding community. FEIS at 4.8-1. The FEIS also thoroughly examined the noise impact on sensitive noise receptors such as public schools. FEIS at 4.8-4 to 4.8-9. The Navy even used the FEIS to suggest a number of methods that the local community could mitigate the noise impact, and also indicated its plan to work with local community officials to conduct surveys of the noise impacts at local schools. FEIS at 4.8-4.

Second, the Navy argues that the FEIS properly excluded consideration of mitigation costs to private homeowners because such costs were too speculative. The Navy claims the costs were speculative because there was no way of determining how many homeowners would actually undertake mitigation. [FN 13] It is also uncertain whether all of the homes in question would even require additional sound attenuation. [FN 14] The cases the government relies on to support this argument, though, simply state that NEPA does not require an agency to discuss speculative environmental impacts. See, e.g., Dubois, 102 F.3d at 1286; Environmental Def. Fund, Inc. v. Hoffman, 566 F.2d 1060, 1067 (8th Cir.1977). Here, the noise impact is not speculative, but is, in fact, quite well known. At the same time, the Navy's reading of these cases for the broader proposition that NEPA does not require discussion of speculative mitigation costs resulting from the known noise impact appears to be correct, given the insurmountable difficulty of calculating those costs, [FN 15] Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 290 (4th Cir.1999) ("the mere fact that certain factors in a cost-benefit analysis are generally imprecise or unquantifiable does not render the result inadequate"), and the fact that there is no requirement that a complete mitigation plan be developed when the means and authority to mitigate are outside the agency's purview. Methow Valley Citizens Council, 490 U.S. at 352-53, 109 S.Ct. 1835. As a result, the court finds that the Navy did not act arbitrarily or capriciously in failing to discuss the costs of private and local government sound attenuation.

[FN 13] Plaintiff relies heavily on the fact that the Chief of Naval Operations ("CNO") was given an analysis that indicated the sound attenuation costs for the approximately 33,948 single-family homes experiencing noise impacts greater than 65 dB would average $30,000 per residence. AR 50501. The analysis also indicated that school attenuation costs would average $1.5 million per school. Id. However, plaintiff's use of these numbers is taken out of context. The memorandum prepared for the CNO was a comparison of Navy and FAA policies on noise mitigation. The memorandum clearly states the same Navy policy discussed in the FEIS, namely that the Navy, while encouraging attenuation efforts by local communities, does not have, and has never sought, Congressional authority to fund community sound attenuation. FEIS at 4.8-4. By way of contrast, the memorandum then discusses the FAA's federally-funded mitigation plan, which allows a homeowner to obtain Federal Airport Improvement Funds for seventy-five to ninety percent of noise mitigation costs, with the remainder borne by the (private) airport operator. Id.; AR 50502-06 (overview of FAA's Airport Noise Compatibility Program attached to CNO memorandum). The numerical analysis section follows the section on mitigation measures available to the FAA, and is clearly a worst case estimate of attenuation costs that would occur if the Navy had the same kind of authority as the FAA to provide federal funds for sound attenuation. NEPA, however, does not require agencies to conduct a worst case analysis, especially for mitigation measures outside the agency's control. Methow Valley Citizens Council, 490 U.S. at 354, 109 S.Ct. 1835.

[FN 14] It would be well-nigh impossible for the Navy to determine how many of the over 33,000 homes would require sound attenuation. This is not a case of a new airfield being constructed or an older field undergoing significant expansion, such that residences and other buildings are being affected for the very first time. Instead, NAS Oceana has existed for over four decades. Much of the growth and development around NAS Oceana occurred in the last twenty years, a time when, as the 1978 AICUZ contours demonstrate, aviation activity at NAS Oceana was at a fever pitch. It is entirely possible that many of the homes constructed during this time frame were built with sufficient attenuation measures, and there would be no utility in taking any additional mitigation measures.

[FN 15] See supra notes 13 and 14 and accompanying text.

Continued in Part 2