Davison v. Dept. Defense (concluded)


B. Mitigation Measures

The second main prong of plaintiffs' attack focuses on ways in which the EIS proposes to mitigate noise level increases. Generally plaintiffs allege that the EIS overemphasizes the noise attenuation that will result from these mitigation measures. Plaintiffs particularly question the feasibility the proposed 20o right-hand turn for aircraft taking off to the northeast over Groveport, and the proposed "head-to-head" flight operations at the air cargo facility.

The EIS states that on days when civilian cargo aircraft must, because of the prevailing winds, take off toward Groveport, a 20o right turn away from the village will be taken as soon as departing aircraft reach a safe altitude. At trial plaintiffs presented some testimony that this turn could not be accomplished at a safe altitude near enough to Rickenbacker to have any appreciable effect on noise levels in Groveport. Defendants rebutted this testimony by producing a number of pilots and air traffic controllers who established not only that the turn was feasible fairly close to the base, but also that it was currently a standard operating procedure for military flights at Rickenbacker. In fact, the current commander of the Air National Guard in Ohio testified that the noisiest and most cumbersome military aircraft now in use at Rickenbacker, the KC-135, routinely makes a 40o noise abatement turn upon taking off to the northeast.

It thus appears that a 20o turn shortly after takeoff is entirely feasible, although the precise quantity of noise abatement attained by the maneuver is unclear. The EIS does not estimate the decibel reduction in DNL or SEL, if any, that may be expected from the proposed noise abatement turn, nor does it make clear whether the current and proposed noise level averages already reflect this noise abatement measure. If so, the executive summary describing the effect of mitigation procedures may be slightly misleading, because it implies that the 20o turn will decrease the proposed noise levels even further. Despite these rather minor deficiencies, however, the Court finds plaintiffs' objections concerning this part of the EIS to be without merit.

Equally unpersuasive are plaintiffs' protestations regarding the implementation of "head-to-head" operations. The EIS states that:

The Air Force can institute procedures for "head-to-head" operations, particularly for late-night civil operations. Given calm wind conditions and adequate control, aircraft can land from the southwest on Runway 05 and take off to the southwest on Runway 23.
EIS, at IV-21. [FN 13] This less-than-lucid description of the proposed mitigation measure created a great deal of confusion at trial, and plaintiffs introduced a large amount of testimony pointing out the rather obvious safety problems involved in requiring various aircraft to take off in, and land from, the same direction at the same time. Testimony by various defense witnesses made it relatively clear, however, that the term "head-to-head" describes a procedure whereby all takeoffs and all landings occur in the same direction, but at well staggered time intervals. One of Rickenbacker's potential civilian tenants has proposed, for example, that almost all incoming air cargo flights would land at the base between 12:00 noon and 2:00 p.m. or 12:00 midnight and 2:00 a.m., that all outgoing flights would take off between 4:00 p.m. and 6:00 p.m. or 4:00 a.m. and 6:00 a.m. Under the proper weather conditions, this type of operation is routine.
[FN 13] For purposes of takeoffs and landings, the runway is named according to the direction in which the plane using it is headed. Each runway therefore has two distinct designations corresponding to opposite points on the compass. When aircraft using Rickenbacker are proceeding toward or away on a heading of 050o, they are said to be using Runway 05. Conversely, when they are proceeding on a heading of 230o, they are said to be using Runway 23, even though both designations refer to the same slab of concrete.
Plaintiffs argue nevertheless that the EIS overstates the percentage of time during which head-to-head operations are possible. According to the testimony developed at trial, the feasibility of such operations depends largely on wind direction and velocity. [FN 14] Based on long-term government observations of the prevailing winds and historical runway designations at Rickenbacker, the EIS estimates that head-to-head operations can take place up to 70% of the time. A former Air Force meteorologist, testifying for plaintiffs, disputed this figure. He noted that planes attempting to take off from Rickenbacker to the southwest would experience a favorable headwind approximately 72% of the time. Conversely, aircraft attempting to land from a southwesterly direction would experience favorable headwinds only 28% of the time. Since both landings and takeoffs are ordinarily conducted into the wind, he concluded that head-to-head flying would be possible much less often than indicated in the EIS. He admitted on cross-examination, however, that his calculations did not take into account the percentage of time that winds at Rickenbacker would be so calm as to make takeoff and landing directions optional. He candidly acknowledged that the amount of time in which winds were calm could have a significant effect on the viability of head-to-head operations. The historical wind data included in the EIS, as well as the testimony of several defense experts, suggests that this omission on the part of plaintiffs' meteorologist may explain at least part of the discrepancy between his estimates and those of the government. At any rate, in this respect plaintiffs have failed to show that the EIS estimate is seriously flawed.
[FN 14] Safety dictates that most takeoffs and landings be conducted into a headwind. Tailwind operations are possible, but only if the tailwind component on a given runway is minimal, usually less than ten knots.
Here again this portion of the EIS is hardly free of weaknesses. It does not set forth in any precise manner the way in which estimates of feasible head-to-head flying time were calculated, and it does not explain which mitigation measures, if any, have already been figured into noise data on the proposed use. The Court cannot say, though, that these deficiencies make the entire EIS discussion of mitigation misleading as a matter of law. A better job could clearly have been done, but the job that was done is sufficient to allow the decisionmaker to take a "hard look" at potential mitigation techniques.


C. Health Impact

Although the Rickenbacker EIS does not contain a discrete section advising the Secretary about the potential health hazards of increased noise, it does identify a DNL of 65 dB or above as the level at which noise becomes "normally unacceptable." At that level, according to EIS Table B-3, 15% of the population will report being highly annoyed, and adverse community reaction will be significant. A note appended to this table states:

Research implicates noise as a factor producing stress-related health effects such as heart disease, high-blood pressure and stroke, ulcers and other digestive disorders. The relationships between noise and these effects, however, have not as yet been quantified. In addition, the EIS states elsewhere that while some studies have identified correlations between noise and physiological abnormalities in school children, such effects are minimal.
In response to these statements, plaintiffs produced Dr. Karl D. Kryter, a recognized expert in the field of noise impact on health and human perception. [FN 15] Dr. Kryter criticized the use of a 65 dB/DNL threshold, claiming that significant adverse health effects are observable at DNL levels well below that. He cited as proof a series of 1977 research studies done in Amsterdam by a well-known noise expert which indicated that cardiovascular disease, drug usage, and visits to doctors all began to increase at DNL levels as low as 55 dB. [FN 16] Kryter contended that these studies should at the very least have been mentioned in the EIS. In rebuttal defendants produced a noise expert with equally impressive credentials, Dr. David Krantz. He criticized the methodology of the studies relied upon by Dr. Kryter, and maintained generally that health effects resulting from DNL levels below 65 dB were as yet unquantifiable.
[FN 15] This apparently is the same Dr. Kryter whose testimony was relied upon by the court in City of Romulus v. County of Wayne, 392 F.Supp. 578, 592-594 (E.D.Mich.1975), vacated as moot, 634 F.2d 347 (6th Cir.1980).

[FN 16] Knipschild, Medical Effects of Aircraft Noise: Community Cardiovascular Survey, 40 Int. Archives of Occupational & Environmental Health (hereinafter Archives) 185 (1977); Knipschild, Medical Effects of Aircraft Noise: General Practice Survey, 40 Archives 191 (1977); Knipschild & Oudshoorn, Medical Effects of Aircraft Noise: Drug Survey, 40 Archives 197 (1977).

With all due respect to these two highly qualified doctors, this dispute, though important, boils down to little more than a difference of opinion between experts. In a dispute over the sufficiency of an EIS, the Court has neither the expertise nor the authority to resolve such a conflict. Kentucky ex rel. Beshear v. Alexander, supra, 655 F.2d at 718; Environmental Defense Fund v. Tennessee Valley Authority, supra, 492 F.2d at 468 n. 1; Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. 650, 656 (E.D.Mich.1976), aff'd 559 F.2d 1220 (6th Cir.1977). As the Ninth Circuit has observed:
we note that disagreement among experts will not serve to invalidate an EIS. Indeed, "further studies, evaluation and analyses by experts are almost certain to reveal inadequacies or deficiencies." Environmental Defense Fund v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1971), aff'd., 470 F.2d 289 (8th Cir.1972). The purpose of an EIS is to inform the decision makers of the environmental ramifications of the proposed action .... The statement need not achieve scientific unanimity on the desirability of proceeding with the proposed action. (Citations omitted).
Life of the Land v. Brinegar, 485 F.2d 460, 472-473 (9th Cir.1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974).

Certainly the Rickenbacker EIS would have benefited from the addition of the Amsterdam studies and Dr. Kryter's input, but the report cannot reasonably be expected to include references to each and every relevant scientific study or opinion. It is enough that the current state of scientific knowledge on a particular subject be represented fairly and in a reasonably balanced manner. See Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. at 656. The Court finds that this was done here, at least with respect to effects of noise on human health and perception.


D. Classroom Disruption

According to the EIS, three elementary and two secondary schools in the Rickenbacker area will fall into DNL noise contours above 65 dB upon implementation of the proposed air cargo plan. [FN 17] The report states further:

The principal impact on these schools will result from the estimated maximum number of thirty-one air cargo landings to take place in the early afternoon. Under present operational conditions landings would be from the north, over the affected schools, on approximately 30 percent of the days (one and one-half days per week, two hours per day for an average of three hours per week) ....

... This number [31 air cargo landings] is expected to be somewhat less than the number of military landings currently taking place during school hours under similar conditions.

EIS at IV-17. The EIS concludes that since single-event peak levels for civilian and military aircraft are roughly equivalent, the increase in DNL levels for schools affected by air cargo traffic will be negligible. Table IV-7 shows that three of the affected schools will suffer a total increase in 12-hour daytime DNL of only one decibel; the other two schools will be unaffected in terms of DNL. [FN 18]
[FN 17] The reaccomplished figures include three other schools which will probably fall into this range upon implementation of air cargo operations. None of these three schools will apparently experience a DNL above 66 dB, however. See Reacc. Data at III-9; see also Atch. 18.

[FN 18] See also, Reacc. Data at Atch. 18. The reaccomplished figures show even less overall DNL increase.

As indicated above, the averaging of noise level figures in this context is somewhat inappropriate; the Court suggests that the better measure of noise impact on schools is probably the number of peak level noise events that will be loud enough to disrupt classroom activities within a given time period. This figure does not appear anywhere in the EIS. Even assuming that the number of classroom disruptions is 31 on the worst days when all air cargo landings are from the north, however, there is no evidence to show that this number is significantly greater than that already experienced by Rickenbacker area schools. In fact, a number of defense witnesses suggested that the opposite may be true. They opined that most classroom disruptions under current operations result from KC-135's, and that almost all air cargo vehicles envisioned for use at Rickenbacker are significantly quieter than a KC-135. The plain implication is that total classroom disruptions under the proposed plan may be less than the number experienced presently or in the recent past.

The Court has a great deal of sympathy for those teachers from the Groveport- Madison system who testified at trial regarding the professional frustration they experience during noisy overflights. Unfortunately none of these witnesses could provide any solid evidence that the problem would be exacerbated by the introduction of air cargo flights. Without this type of evidence, the government's failure to document the precise number of classroom disruptions resulting from the proposed use does not amount to a material omission.


E. Sleep Disturbance

The greatest single environmental impact occasioned by the proposed air park will unquestionably be on sleep. With the proposed introduction of approximately 31 air cargo landings between midnight and 2:00 a.m., and a corresponding number of takeoffs between 4:00 a.m. and 6:00 a.m. five nights a week, Groveport residents are understandably concerned about whether or not they will be awakened by the inevitable overflights and, if so, how often. A sizeable portion of the EIS is devoted to potential sleep disturbance, but plaintiffs claim that it does not even begin to give the reader a true feel for the magnitude of the problem. The Court agrees.

In order to place the sleep disturbance dilemma in its proper perspective, the decisionmaker must be made aware of the fact that regular late night aviation is a heretofore unknown phenomenon in the Rickenbacker area. Numerous Groveport residents testified that military aircraft at the base have almost never flown after 11:00 p.m., at least not for the last two or three years. Whether or not significant late night flying took place prior to that is not entirely clear from the record, but the testimony of several older Groveport residents suggests that the Air Force has almost always curtailed its flight operations between 11:00 p.m. and 6:00 a.m. A few of the residents indicated that they had adjusted their sleep habits to coincide with this pattern. It thus became rather evident at trial that the proposed nighttime air cargo operations will, unlike daytime flights, impose an entirely new environmental impact on those within earshot of the base.

Rather surprisingly, this fact does not appear anywhere in the text of the EIS. [FN 19] In fact, a number of tables included within the report suggest just the contrary. In the chapter which describes the environment of the affected area generally, Table III-3 purports to summarize current periods of military operation. [FN 20] The table shows KC-135 landings between 10:00 and midnight, and between 1:00 a.m. and 4:00 a.m. five nights a week. Nothing in the table explains the frequency of these flights, so the unenlightened reader is naturally led to believe that nighttime military operations are regularly conducted at Rickenbacker. This conclusion is backed up by Table IV-3 which deals with the percentage of people awakened by overflights. [FN 21] The table estimates the outdoor SEL levels for all aircraft at Rickenbacker, both military and civilian, and from this it projects the percentage of Groveport residents awakened by a particular overflight. The table properly implies that KC-135 overflights will generally cause more sleep disruption than those of most civilian air cargo planes, but it also supports the inference that military overflights during normal sleeping hours are common.

[FN 19] As noted earlier, the EIS Executive Summary refers to "the introduction of a significant number of night and early morning flights." To one with extensive outside knowledge of present and proposed operations at Rickenbacker, this could be taken as an indication that regular nighttime flying is a novel feature of the proposed use. The language is ambiguous at best, however, and it would be difficult, if not impossible, for the average lay reader to conclude solely on the basis of this passage that nighttime operations at the base were heretofore rare. Defendants argue that this fact can be inferred from remarks in the public comment section of the EIS. They have not pointed to any specific examples therein, though, and even if they had, the Court believes that the unique nature of the proposed nighttime flying is so important that it should have been emphasized in the main body of the report.

[FN 20] This table [III-3] is reproduced below.

                                  TABLE III-3
                    Periods of Military Aircraft Operations
-------------------------------------------------------------------------------
          Monday   Tuesday   Wednesday  Thursday   Friday    Saturday   Sunday
Aircraft  ---------------------------------------------------------------------
          AM  PM  AM   PM    AM    PM   AM   PM   AM   PM   AM    PM   AM   PM
-------------------------------------------------------------------------------

C-123     -   -   -   6-11   -    6-11  -   6-11  -    -  10-12* 1-3* 10-12 1-3

A-7       -   -   9---4:30   11---10    11---10   9--4:30  7:30--4:30  -    -

KC-135
 Takeoffs -   -  10-12 7-8  10-12  7-8 10-12 7-8 10-12 7-8 10-12  -    -    -

 Landings -   -   1-4 10-12  1-4 10-12 1-4  10-12 1-4 10-12 -    1-4   -    -
-------------------------------------------------------------------------------
Note: C-123 and A-7 aircraft generally remain in the vicinity of
Rickenbacker ANGB and perform several operations.
* These operations occur only two weekends per month.
[FN 21] This table is reproduced below. See also Reacc. Data, Atch. 22. 
                                  TABLE IV-3
                         Percentage of People Awakened
                            by Aircraft Overflights
-------------------------------------------------------------------------------
                                             Outdoor       Percentage Awakened
                                              Sound      ----------------------
   Location            Operation             Exposure      Summer      Winter
                                               (dB)
-------------------------------------------------------------------------------

Groveport Eastern    KC-135 landing            107           45          35
  Edge (directly     A-7 landing                92           30          20
  under flight path) DC-8 landing               97           35          25
                     B-747 landing              99           40          25
                     DC-8 takeoff               92           30          20
                     B-747 takeoff              93           30          20

Groveport Western    KC-135 landing             83           20          10
 Edge                A-7 landing                74           10          <1
                     DC-8 landing               78           15           5
                     B-747 landing              84           20          10
                     DC-8 takeoff               88           25          20
                     B-747 takeoff              88           25          20
-------------------------------------------------------------------------------
*  At the intersection of Groveport Road and Delane Road.
** Near the north end of Westport Drive.

NOTE: The map locations of these points may be identified by using the
plastic overlay inside the back cover with the maps in Chapters III and IV.
Taken together, these tables could easily mislead the decisionmaker into thinking that the environmental impact of the proposed nighttime cargo operations is not significantly greater than that already experienced by area inhabitants. This is clearly not the case, and the remainder of the EIS does not sufficiently disabuse the reader of these notions. To some extent the increase in DNL shown in the noise contour data, coupled with knowledge of the nighttime "penalty" in DNL calculations, could indicate to the decisionmaker that more flights would occur during normal sleep periods under the proposed use than under existing operations, but the great magnitude of this difference should have been made plain in the EIS. The Court cannot fathom why this most important detail appears to have been buried under mountains of less relevant data.

The EIS also lacks precision in its reporting of the frequency with which sleep disturbance may occur. The report notes that:

From 10 to 45 percent of those people living in the noisiest Groveport areas directly under the approach flight path will be disturbed by overflights. The problem is significantly more severe in the summer when windows are open. The fraction of people disturbed drops by approximately five percent for every 1000 feet added to the distance from the runway centerline. Thus, there is little effect at the western edge of Groveport. Under the summer conditions with windows open, approximately 25 percent of the population of Groveport, or approximately 800 people, may be expected to be disturbed from sleep on those days when there are landings from the north, i.e., one and one-half days per week on the average. In the winter this percentage will drop to approximately 15 percent or 485 people disturbed. Takeoff disturbance would be less because of noise abatement flight procedures.
EIS at IV-5 and IV-7. Table IV-3 breaks these estimates down further, showing the percentage of sleep awakenings caused by each type of aircraft. [FN 22] What neither the text nor the table makes abundantly clear, however, is that the percentage calculations contained therein refer to the amount of sleep disturbance resulting from each overflight. With up to 31 landings and 31 takeoffs each night, this presumably means that on nights when all takeoffs or all landings must be made over the northeast, some Groveport residents face the possibility of being awakened 31 times in the span of two hours. Since head-to-head operations will ordinarily be impossible one and one-half nights a week, this massive disruption may occur on the average of six nights per month.
[FN 22] See note 21, supra.
In addition, the figures themselves are somewhat misleading. One of the defense experts noted at trial that although each summertime landing may awaken approximately 800 people in Groveport, the individuals within each 800-person group may differ from flight to flight. In other words, 31 overflights in a two-hour period will not necessarily awaken 800 individuals 31 times; different flights will awaken different people, so the number of persons who are awakened at least once in a 31-overflight span may be well in excess of 800.

None of this is explained in the EIS. Instead the document informs the decisionmaker that the maximum amount of time during which the outdoor noise level will normally exceed 85 dB(A) [FN 23] is only three to five minutes in a two-hour period. EIS at IV-7. This statistic is meaningless since the peak levels described above would be short in duration but spread out over the entire two-hour span. In other words, some individuals in Groveport would apparently be treated in the middle of the night to a 10-second noise event above 85 dB(A) on the average of once every four minutes for a two-hour period. If 31 B-747's landed during this time, the effect on residents living near the eastern edge of Groveport would be somewhat akin to having a power mower started up on the lawn outside their bedroom window 31 times between midnight and 2:00 a.m. Compare EIS Tables III-2 with IV-1. The reader thus cannot gain any real appreciation of the potential disruption simply by being told the number of minutes that aircraft noise will occur when all of the overflight peak level events are strung together. With the aid of four days of expert testimony and a number of reaccomplished figures, the Court has to some extent been able to draw rather tortured inferences from various diverse parts of the report, but it is doubtful that the decisionmaker could have done the same simply by reading and rereading the final EIS.

[FN 23] According to the testimony of Dr. Peter Daley, who supervised the preparation of the EIS, noise intensity figures can be presented either in straight decibels (dB) or in A-weighted decibels (dB(A)). The former unit measures absolute energy output, while the latter is weighted to account for differences in human audiometric perception. The units are used almost interchangeably throughout the EIS, and the Court's use of a dB(A) figure here is consistent with its use in the report.
The EIS treatment of potential sleep disturbance is more notable for what it leaves out than what it includes. The decisionmaker is never informed of the quantity of night flights that have traditionally landed or taken off from Rickenbacker. He is not told the number of times per night that the average Groveport resident can expect to be awakened by northerly overflights when such overflights are necessary. He cannot ascertain from the data presented how many people in Groveport or elsewhere will be awakened at least once on these "worst case" nights. Finally, the EIS fails to tell him whether sleep disturbance will diminish over time as residents become accustomed to periodic overflights, and whether this diminution, if any, is significant, or whether there are important physiological effects that can be expected from long-term exposure to noise-induced sleep disturbance. [FN 24] Answers to at least some of these questions are vital if the decisionmaker is ever to be made fully aware of the sleep disturbance problem. Without them he cannot even begin to take a "hard look" at the environmental consequences of air cargo operations.
[FN 24] As noted above, the precise link between high DNL exposure and physiological disorders is far from clear; only now have scientists begun to quantify the connection. This may not be true of the correlation between health and chronic sleep disturbance, though. There is nothing on the record to indicate that the preparers of the EIS ever tried to locate research on this subject. The Court believes that such research, if it exists, would be highly relevant to the issues at hand.
In light of NEPA's command that the relevant agencies explore the unavoidable environmental consequences of their proposed actions "to the fullest extent possible," the Court is hard-pressed to believe that the Air Force has fulfilled its duty here. The Court is well aware that there are flaws in almost any environmental study, but it believes nonetheless that this particular portion of the EIS has so much room for improvement that it is inadequate as a matter of law. There is simply not enough relevant information concerning sleep interruption in the EIS to allow the decisionmaker to weigh fairly the environmental pros and cons of the air cargo proposal.


F. The EIS as a Whole

Viewed in its entirety, the EIS evidences a good faith effort on the part of the Air Force to identify and evaluate the environmental impact of the proposed air industrial park at Rickenbacker. With one exception, the report deals sufficiently with the adverse consequences of increased noise in the surrounding area. Because the one exception involves such a profound potential environmental problem, however, the Court is unwilling to approve in full either the document or the final decision based thereupon until the question of sleep disturbance is reviewed more thoroughly.


IV

Having held that a portion of the Rickenbacker EIS is inadequate to satisfy the provisions of NEPA, the Court must next turn to the question of an appropriate remedy. Where a federal agency has failed to give due consideration to the environmental consequences of a proposed action, the courts as a first step generally remand the proceedings to the agency for further study and publication. City of Romulus v. County of Wayne, 392 F.Supp. 578 (E.D.Mich.1975), vacated as moot, 634 F.2d 347 (6th Cir.1980); City of New York v. United States, 337 F.Supp. 150 (E.D.N.Y.1972), supplemented, 344 F.Supp. 929 (1972); see also, Red Line Alert v. Adams, 10 Environ.L.Reptr. 20314 (D.Mass.1980). It should be relatively clear from the abovegoing discussion that such a procedure is called for in the present case. The Court has found numerous flaws in various parts of the final EIS, and so apparently has the Air Force. The fact that much of the data in the document has had to be "reaccomplished" casts some doubt on the accuracy of the EIS as a whole. Ideally, then, the Secretary should reconsider the entire report, including the revised figures and noise contours contained in the addendum compiled just prior to trial.

Only a portion of the EIS has been found insufficient as a matter of law, though, and the Court would be overstepping its bounds to require the document to be completely rewritten. Defendants need only compile a supplemental EIS regarding the impact of the proposed air industrial park on the sleeping habits of those individuals now living in the Rickenbacker area. The Court will leave to the preparers the precise details of production and distribution, but it is expected that the new supplement will in every respect comply with the procedural prerequisites of NEPA and its supporting regulations, including those pertaining to comment by the public. The document should include the pertinent reaccomplished statistics, and should also inform the Secretary that significant recalculations have been made in areas other than sleep disturbance. The Court of course cannot tell the federal defendants how best to study the problem, but hopefully the supplemental statement will address the issues raised above, and will include a discussion of the potential disruption of sleep in areas other than just Groveport. Once this has been done, defendants are free to submit the supplement, along with public comments thereon, to the Secretary for a final decision on the proposed use.

It was urged by the government at closing arguments that a remand would be largely meaningless, since reconsideration of the noise impact of the air cargo facility is hardly likely to change the Secretary's final decision. The Court recognizes that the remedy it can offer here is limited, but as Judge Friendly has cogently observed in a similar context:

To permit an agency to ignore its duties under NEPA with impunity because we have serious doubts that its ultimate decision will be affected by compliance would subvert the very purpose of the Act and encourage further administrative laxity in this area. The systematic investigation ... which NEPA requires may well reveal substantial environmental consequences and ... may possibly provide an economic alternative to [the proposed project, or] compel further consideration of its propriety and necessity.
City of New York, supra, 377 F.Supp. at 160.

With respect to air cargo activity in the interim, the Court believes that it would be highly inequitable to allow defendants to proceed unfettered in implementing the proposed air cargo operations pending completion of the EIS supplement. In deciding whether to stay further agency action until the requirements of NEPA have been met, the courts are guided by traditional principles of equity and injunctive relief. See City of Romulus, supra, 392 F.2d at 594. Here those principles militate in favor of an injunction, since:

the more time and resources [defendants] are allowed to invest in this project, the greater becomes the likelihood that compliance with section 102 of NEPA, and the reconsideration of the project in light of the provisions of section 101, will prove merely to be an empty gesture .... Accordingly, "unless the plaintiffs receive now whatever relief they are entitled to, there is danger that it will be of little or no value to them or to anyone else when finally obtained."
(Citations omitted); Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1183 (6th Cir.1972), cert. denied, 414 U.S. 1036, 94 S.Ct. 535, 38 L.Ed.2d 327 (1973), quoting Latham v. Volpe, 455 F.2d 1111, 1117 (9th Cir.1971). In addition, since relatively few resources have been invested in the project to date, the harm to defendants in granting an injunction is relatively slight. The delay caused by this litigation could possibly result in the loss of rental revenue or even the loss of a prospective tenant, but this harm, if it exists, can easily be mitigated by speedy compliance with the terms of NEPA and its regulations.

On the other hand, the only air cargo operations directly affected by future revisions in the EIS are those which are scheduled to occur at night. The Court sees no reason why daytime operations must also be enjoined. The commencement of daytime flying would not represent the type of investment of resources that would be likely to prejudice the Secretary's ultimate decision, since any civilian air carrier who wished to commence daytime flights would have to do so with the express understanding that nighttime operations could be ruled out permanently, and that the Secretary could select another alternative for use of the base. If RPA is able to find a tenant willing to accept these contingencies, then it may begin to implement daytime air cargo operations immediately. Defendants should not be able to ignore the mandate of NEPA and still proceed with the proposed agency action, but neither should they be unduly penalized where the infraction pertains to only a portion of the proposal.


Conclusion

For the foregoing reasons, the Court finds that the Department of the Air Force has violated Sections 102(2)(C)(i) and (ii) of NEPA, 42 U.S.C. 4332(2)(C)(i) and (ii), in that it has not adequately explored the impact of air cargo operations on human sleep cycles in the area surrounding Rickenbacker ANGB. In all other respects the final EIS prepared by the Air Force is legally sufficient.

Until such time as a supplemental EIS has been prepared in accordance with the guidelines set forth herein, and a final decision on the basis of the supplement has been rendered by the Secretary, the parties should, with some exceptions, be bound by the substance of the interim order to which defendants agreed at the close of the trial. Accordingly, defendants shall not cause or permit air cargo operations involving major structural alterations to take place at Rickenbacker, nor shall they allow title to the excess lands or facilities at the base to be transferred. Defendants also shall not introduce any air cargo operations to Rickenbacker pursuant to the joint use agreement or interim lease between the hours of 10:00 p.m. and 7:00 a.m. Defendants may, however, allow air cargo operations to commence during all other hours, provided that such operations do not require major structural alterations or irrevocable commitments of fixed resources at the base. To the extent that they are inconsistent with this opinion and order, all previous orders of the Court restricting implementation of the joint use proposal at Rickenbacker are hereby rescinded.

So ORDERED.