Ornelas et al v. United States Department of The Air Force et al

MOTION for Summary Judgment

D. Ariz.March 27, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 1 - ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST P.O. Box 41835 Tucson, Arizona 85719 (520)529-1798 Attorneys for Plaintiffs Joy E. Herr-Cardillo (009718) jherrcardillo@aclpi.org Timothy M. Hogan (004567) thogan@aclpi.org IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Rita B. Ornelas, Gary Hunter, and Anita Scales, Plaintiffs, v. United States Department of the Air Force, et al. Defendants. No. 4:16-CV-00046-JAS-JR PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested) INTRODUCTION We just received the ‘draft’ preliminary study OSB report - if there ever was a poster-child for mission creep, we seem to have it here. Darren T. Horstmeier, Chief, Asset Optimization for the 355th Civil Engineer Squadron at DMAFB. AR00184321 This dispute has its origins in a program known as Operation Snowbird (OSB) which began in the 1970s as a way to train Air National Guard (ANG) pilots based in northern states during the winter months. The program was run by the ANG out of Davis Monthan 1 AR____ refers to the Administrative Record document number. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 1 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 2 - Air Force Base (DMAFB) which is located just southeast of Tucson’s central city. Over the years, the program evolved into year-round training; however, prior to the Environmental Assessment (EA) that is the subject of this lawsuit, the first and last environmental analysis of the program was performed in 1978, long before it expanded its schedule. Thus the environmental impacts of extending the program year round were never evaluated before the change was made. Nor were other significant changes to the program, such as the number and type of aircraft flown by participants, evaluated prior to their implementation, as required by the National Environmental Policy Act (NEPA). The persons most affected by this oversight were the neighbors living in the DM flight path. In particular, the Julia Keen neighborhood, one of the closest to the base, experienced such an increase in noise that its school was closed in 2004. AR0009085. In a comment letter submitted in response to a draft of the EA and Finding of No Significant Impact (FONSI) at issue in this case, plaintiff Rita Ornelas, who lives in Julia Keen and owns a house located in the loudest noise corridor, describes how the situation has changed since 2004 when louder aircraft started flying over her home: Whenever the planes fly over the house, either taking off or landing, it is a terrible experience for us. The noise and thunderous noise and vibrations affect us inside our house: we can’t hear the TV, we can’t talk on the phone, we can’t talk to each other inside the house. It is very frustrating and the noise hurts us. If we are outside when a plane is coming over, we have to wait to talk to anybody and we have to put our fingers in our ears. Many times things fall off our shelves, our walls and ceilings are cracked, we fix them and then again they crack again. I feel that something is happening to the ground, even the floor doesn’t seem stable. I feel like the vibrations of the planes is doing something to the ground under the house, and it is also doing terrible things to our bodies, and our emotions, and our health, and our pets. Sometimes when I open the door to go get the mail from the mailbox by the street, I start to go and then I hear a plane coming, and I close the door until the plane goes over, then I go out and get the mail, and sometimes while I am getting the mail another plane comes over. You may not think much about this, but it is very disturbing. The noise and vibrations are so terrible at times that my dog starts barking and also is frightened by the noise. We experience these kinds of things almost on a daily basis and sometimes it is very many times during the day, and now even in the evening, at night and over night and early in the morning Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 2 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 3 - too. And when people come to visit, they are shocked by the noise and vibrations, and ask us how we can stand this. Comment Letter dated October 2, 2012, AR0022399. As Ms. Ornelas explains in her letter, it wasn’t always like this. And with the expansion of the program it is likely to get worse, much worse if F-35 aircraft continue to be added to the mix. Yet, the Air Force has not been inclined to recognize, let alone ameliorate, the direct harm it is inflicting on its neighbors. For example, Steven “Scott” Hines, Davis Monthan’s representative on the Military Community Relations Committee (MCRC) had this reaction to deliberations, shortly before its release, about whether the Final EA needed to include a discussion of the F-35s, which had recently flown over Tucson: Lt Col Ellers... finger to nose. Apologies for the delayed reply...[...] In my opinion there is absolutely NO need to modify the language of the EA for the F-35 in this instance unless you believe you should also modify it for the F- I8, Marine Harrier etc. etc. [* * *] Honestly WE (DM, ACC, and AF) need to stop reacting this way to Noise Complaints at DM. I would speculate that at least 50% if not significantly more of the recent F-35 complaint[s] were not observed by the complain[an]t but more likely passed on by others to them. While the F-35s did in fact fly an approach to DM that day I believe F-22S’s were also flying at DM for the Heritage Flight Training Course. Other than larger the profile the F-22 and F- 35 are very similar to the untrained eye. Our PA office generally captures the information is not asked to challenge the complainants report. We tend to respond to these complaints assuming what they observed is accurate trying to justify our operations. Using our PA and Ops resources attempting [to] explain again and again what many of our complain[an]ts have heard over and over again doesn’t seem very helpful. I truly understand and recognize your desire to manage and respond to this issue but after 10 years here, reading the AZ Star and, dealing with the politicians and individuals who say they represent their [neighborhood associations] in the MCRC I believe we may be overreacting a bit to this situation. From my observation of the MCRC I believe if a suit happens it will come from Tucson Forward and will not be supported by the City of Tucson Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 3 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 4 - and certainly not by Pima County. If I thought it would this response would be different. I recognize that my role and function for ACC and this Wing institutionalized however I’m compelled to respond. YES, Tucson has some very active citizens who do oppose all, “ALL” operations at DM and they have deliberately expressed that opinion at the highest levels of DoD. However, in greater the Tucson Valley [sic] I believe their opinion and influence has lessened by their own continued rhetoric. While we may continue to see a lack of overt/direct support from the city’s collective political leaders the DM50 has deliberately stepped up their direct engagement with AZ Congressional members and DoD and we’re seeing a difference is [sic] what is now being said at those levels. (unbracketed ellipsis in original; bracketed ellipses added). Email from Scott Hines to Lt. Col. Eilers dated March 6, 2015; AR0019014. Needless to say, this obvious contempt for the members of the community most affected by the Base’s proposal to further expand visiting unit operations by the very person that the Air Force has designated as its community liaison certainly calls into question whether the EA was prepared in good faith. As discussed more fully below, the overall inadequacy of the analyses included in the EA is further and compelling evidence that it was not. STATEMENT OF FACTS2 OSB began in the early 1970s and was granted official status in 1975. SOF¶16. It was initially designed to be a winter only program for pilots based in northern states. Id. In 1978, the USAF and ANG completed an EA and FONSI for the program. SOF ¶17. Between 1988 and 1992, the type of aircraft flying in OSB converted from F-100 and A-7 to F-16, but no analysis under NEPA was prepared. Similarly, the program transitioned to a year round program in 1995 without any additional NEPA analysis. SOF ¶20. Controversial 2 Pursuant to LRCiv. 56.1(a), plaintiffs have submitted a Separate Statement of Facts in Support of this Motion. References to that document are SOF ¶_____. Given the long history and extensive Administrative Record, the Separate SOF provides a more comprehensive compilation of the facts. This overview is not intended to be exhaustive and is provided for the convenience of the Court. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 4 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 5 - changes by the City of Tucson to the Land Use Code that significantly altered zoning around the base in 2004 brought increased public attention to all of the base operations including the OSB program. SOF ¶23-28. Zoning overlays were enacted to restrict land uses on properties that were located within the DMAFB flight pattern and the expanded noise contours that formed the basis for the zoning overlays signaled the potential for increased noise over long- established Midtown and University of Arizona area neighborhoods and throughout the DMAFB environs. SOF ¶25. As the community and the base grappled with the controversy, questions arose regarding OSB’s compliance with NEPA. SOF¶¶27-32. In August 2009, the USAF hired Wyle Laboratories to conduct a study of the OSB program. SOF ¶34. The draft report produced by Wyle documented the gradual expansion of the OSB, which as noted above, the USAF recognized as having experienced “mission creep.” SOF¶37. Consequently, in 2010, the Air Force initiated an updated NEPA analysis. SOF ¶39. In July 2012, the Air Force released for public comment its Draft Environmental Assessment for the Proposed Update and Implementation of the National Guard Bureau Training Plan 60-1 in Support of Operation Snowbird Davis-Monthan Air Force Base, Arizona (Draft EA). SOF ¶49. The public comment period for the Draft EA closed in October 2012. SOF¶52. Plaintiffs, both individually and as part of an organization named “Tucson Forward” submitted comments on the Draft EA. SOF¶50. Most of the concerns raised in their initial comments related to the inadequacy of the noise impacts analysis, and the Draft EA’s failure to address the health and safety impacts that the expanded program had on Tucson’s midtown, which is largely residential. SOF ¶51. After the close of the comment period, the USAF announced that it was revising the Draft EA, purportedly to respond to the concerns expressed during the public comment period. SOF¶ 53. In November 2012, DMAFB was instructed to hold further action on the Draft EA and FONSI pending a review by the office of the Secretary of Air Force/Installation, Environment and Energy (SAF/IEE). SOF¶54. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 5 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 6 - It took the Air Force nearly two years to revise the Draft EA; however, in September 2014, it released the Revised Draft EA for public comment. SOF ¶57. In the Revised Draft EA, the USAF expanded the focus of the Draft EA from just the OSB program to include all training missions by visiting units at DMAFB referring to them as “Total Force Training” or “TFT.” SOF¶58. Once again, plaintiffs submitted extensive comments critiquing the lack of a cumulative impacts analysis, an inadequate noise impacts analysis (the USAF has continued to rely solely on DNL methodology despite recent guidance from the DOD recommending that it use supplemental metrics that more accurately measure the impact of noise events), as well as the Revised Draft EA’s failure to fully acknowledge and evaluate the health and safety impacts on the surrounding neighborhoods. SOF¶¶60-63. A Final EA and FONSI was published on May 15, 2015. SOF¶80. Although some of the comments that Plaintiffs raised were addressed in the Final EA, as discussed in the Legal Argument section below, most were not. STANDARD OF REVIEW This case is brought pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 706. The APA provides that courts “shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). While the APA standard of review is deferential, courts must nonetheless engage in a “thorough, probing, in depth review” of the agency action. Citizens of Overton Park v. Volpe, 401 U.S. 402, 415 (1971). Courts must reject agency decisions based on an “erroneous interpretation of law,” if the agency “failed to consider an important aspect of the problem,” or if the agency’s explanations run counter to evidence in the record. League of Wilderness Defenders v. Forest Serv., 549 F.3d 1211, 1215 (9th Cir. 2008). Agencies must also articulate “a rational connection between the facts found and the decision made.” Humane Soc’y of the U.S. v. Locke, 626 F.3d 1040, 1048 (9th Cir. 2010). Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 6 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 7 - LEGAL ARGUMENT A. Overview of the National Environmental Policy Act (NEPA) NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. §1500.1(a). In enacting NEPA, Congress sought to assure that environmental, aesthetic, and cultural concerns are considered by federal decision-makers by requiring “the Federal Government to use all practicable means. . . to improve and coordinate Federal plan[ning].” 42 U.S.C. §4331(b). NEPA does not require that agencies adopt the most environmentally friendly course of action. Rather, “[t]he sweeping policy goals . . . of NEPA are . . . realized through a set of ‘action-forcing’ procedures that require that agencies take a ‘hard look at environmental consequences.’” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.20 (1976)). The cornerstone of NEPA is the EIS that an agency must prepare for all “major Federal actions significantly affecting the quality of the human environment….” 42 U.S.C. §4332(2)(C). CEQ regulations establish criteria for determining when a full EIS is required. These criteria include “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.” 40 C.F.R. §1508.27(b)(7). An agency can first prepare an EA, and if it determines that the proposed action will have “no significant impact” on the environment, it does not need to prepare an EIS. However, whether or not an EIS is warranted, the agency is obligated under NEPA to take a “hard look” at the environmental impacts of its proposed action. Anderson v. Evans, 350 F.3d 815, 829 (9th Cir. 2003). “This includes considering all foreseeable direct and indirect impacts.” Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002). Courts have made it clear that “general statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 7 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 8 - definitive information could not be provided.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998). This action seeks to compel compliance by the USAF with the requirements of NEPA either by requiring the USAF to revise the Final EA to more thoroughly analyze the impacts of the visiting training programs on DMAFB’s neighbors or alternatively to prepare an EIS. Plaintiffs assert several claims, each challenging 1) the failure to consider cumulative impacts; 2) the inadequacy of the noise impacts analysis; 3) the inadequacy of the impact on children analysis; 4) the inadequacy of the analysis of health impacts; 5) the failure to use and appropriate “no action” alternative; 6) the lack of public outreach to and consideration of minority and low-socio-economic communities; and 7) the failure to prepare an EIS. Each of these claims is addressed below. B. In the Final EA the USAF Failed to Meaningfully Analyze Cumulative Impacts as the Law Requires. Although the Final EA contains a chapter entitled “Cumulative Impacts and Other Environmental Considerations,” the USAF failed to actually analyze cumulative effects, especially related to noise. Because the USAF failed to fully evaluate the cumulative impacts of the proposed action on the human environment, the Final EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law. Federal agencies are required to assess the incremental impact of their proposed actions when added to other past, present and reasonably foreseeable future actions so that the decisionmaker, other agencies and the public can have a realistic picture of what the cumulative impacts will actually be on a particular resource in a particular location. Thus, agencies must assess the impacts of not only their own actions (past, present and reasonably foreseeable) but the actions of other agencies and private entities if those actions affect the same resources affected by the lead agency’s actions. 40 C.F.R. § 1508.7. These provisions have been adopted by the Air Force in its own NEPA regulations, codified at 32 C.F.R. § 989 et seq. See id. at § 989.1(b) (“The procedures in this part are essential to achieve and Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 8 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 9 - maintain compliance with NEPA and the Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of the NEPA (40 CFR Parts 1500- 1508, referred to as the “CEQ Regulations”).”) These requirements apply to environmental assessments as well as EISs. Kern v. U.S. Bureau of Land Mgmt, 2824 F.3d 1062, 1077 (9th Cir. 2002) (“‘Given that so many more EAs are prepared than EISs, adequate consideration of cumulative effects requires that EAs address them fully.’” (emphasis the court’s; quoting Council on Environmental Quality, Considering Cumulative Effects Under the National Environmental Policy Act at 4 (Jan.1997)). In the Ninth Circuit, adequate consideration of cumulative effects requires the USAF to take “a ‘hard look’ at all actions.” Te-Moak Tribe v. U.S. Dep’t of Interior, 608 F.3d 592, 603 (9th Cir. 2010). USAF “must give a sufficiently detailed catalogue of past, present, and future projects, and provide an adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.” Id. “General statements about possible effects and some risk do not constitute a hard look absent justification regarding why a more definitive information could not be provided.” Great Basin Mine Watch v. Hankins, 456 F.3d 955, 971 (9th Cir. 2006). Some “quantified and detailed information” must be provided. Te-Moak Tribe, 608 F.3d at 603 (citations omitted). “Without such information, neither the courts nor the public … can be assured that the agency provided the hard look that it is required to provide.” Id. As the Ninth Circuit has repeatedly made clear, having a section marked “cumulative impacts” does not necessarily equate to an adequate analysis. See Great Basin Res. Watch v. Bureau of Land Mgmt., 844 F. 3d 1095, 1105 (9th Cir. 2016)(noting that the analysis of cumulative air impacts “suffers from many of the same shortcomings as the BLM’s analysis in the Hankin case cited above). As the Ninth Circuit explained, “the BLM in this case did not provide sufficiently detailed information in its cumulative air impacts analysis. The Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 9 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 10 - BLM made no attempt to quantify the cumulative air impacts of the Project together with the Ruby Hill Mine and vehicle emissions. Nor did the BLM attempt to quantify or discuss in any detail the effects of other activities, such as oil and gas development, that are identified elsewhere in the FEIS as potentially affecting air resources.” Id., see also Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008)(holding that the cumulative impacts analysis was inadequate because while it quantified certain expected emissions, it did not evaluate the incremental impact that those emissions would have in light of other past, present and reasonably foreseeable actions); Nat’l Trust for Historic Pres. v. Suazo, 2015 U.S. Dist. LEXIS 39380 at *37, 2015 WL 1432632, at *13 (D. Ariz. Mar. 27, 2015)(Campbell, J.)(holding that 33 page analysis contains more than “perfunctory references” to cumulative impacts, but nevertheless was not “‘useful to a decisionmaker in deciding whether, or how, to alter the program to lessen cumulative environmental impacts.’”)(quoting City of Carmel-By-The-Sea v. U.S. D.O.T., 123 F.3d 1142, 1160 (9th Cir. 1997)(quoting Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 299 (D.C. Cir. 1988)). Moreover, as the Ninth Circuit has explained, cumulative impacts can be additive, “until there comes a point where even a marginal increase” can have significant impacts. Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th Cir. 2004). Sometimes the total impact from a set of actions may be greater than the sum of the parts.” Id. “Even a slight increase in adverse conditions that form the existing environmental milieu may sometimes threaten harm that is significant.…” Grand Canyon Trust v. Fed. Aviation Admin, 290 F.3d 339, 343 (D.C. Cir. 2002) (quoting Hanly v. Kleindienst, 471 F.2d 823, 831 (2d Cir.1972)). In Grand Canyon Trust, the FAA approved the City of St. George Utah’s plans to construct a replacement airport near Zion National Park, and issued an environmental assessment concluding that doing so would create non-existent or negligible noise impacts. Id. at 340. That decision was challenged on the basis that the FAA’s noise Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 10 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 11 - analysis considered only the additional noise impact created by construction of the replacement airport, but ignored the cumulative noise impacts of the project when viewed with other factors that might also contribute to increased noise. Id. Specifically, the petitioners alleged that “[t]he FAA cannot be said to have taken a ‘hard look’ at the problem when it considered only the incremental impacts of the replacement airport and not the total noise impact that will result from the relocated airport.” Id. at 341. The FAA contended that it had already found the noise impacts from the proposed action to be negligible and that it was not required to consider the total impact of noise on the Park. Id. The Court of Appeals for the District of Columbia rejected the FAA’s position, noting that “the consistent position of the caselaw is that, depending on the environmental concern at issue, the agency’s EA must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum.” Id. at 342. The Court then remanded the case to the FAA for further consideration of whether an EIS was necessary, stating that “NEPA regulations require that an agency consider cumulative impacts and the FAA’s EA fails to address the total noise impact that will result from the replacement airport.” Id. Thus, the effects of past actions must be analyzed by an agency, “to the extent that they are relevant and useful in analyzing whether the reasonably foreseeable effects of the agency proposal for action and its alternative may have a continuing, additive and significant relationship to those effects.” Memorandum from James L. Connaughton, Chairman, Council on Environmental Quality to Heads of Federal Agencies, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis, June 24, 2005 (CEQ Guidance) at p. 1. See also 43 CFR 46.115 (“When considering the effects of past actions as part of a cumulative effects analysis, the Responsible Official must analyze the effects in accordance with 40 CFR 1508.7 and in accordance with relevant guidance issued by the Council on Environmental Quality, such as ‘The Council on Environmental Quality Guidance Memorandum on Consideration of Past Actions in Cumulative Effects Analysis’ Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 11 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 12 - dated June 24, 2005, or any superseding Council on Environmental Quality guidance.”) In situations where past actions have a significant cause-and-effect relationship with the direct and indirect effects of the proposed action, agencies must analyze those impacts in the context of the proposed action. CEQ Guidance at 3. Further, the guidance points out that information about past actions that were similar to the proposed action may be useful in describing the possible effects of the proposed action. Id. Finally, in evaluating reasonably foreseeable impacts the agency cannot avoid evaluating a future project simply because it is not yet finalized. Northern Plains Res. Council, Inc. v. Surface Transp. Bd, 668 F.3d 1067, 1079 (9th Cir. 2011). As the Ninth Circuit explained in that case, “NEPA requires that an EIS engage in reasonable forecasting. Because speculation is . . . implicit in NEPA, [ ] we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as crystal ball inquiry.” Id. (quoting Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 962 (9th Cir. 2003)). Here, the Air Force has refused to address the additive impact of the proposed action on the surrounding area. Although the Final EA contains a chapter entitled “Cumulative Impacts and Other Environmental Considerations,” the USAF failed to actually analyze cumulative effects, especially related to noise. SOF ¶81. First, the Final EA fails to even analyze the cumulative impacts of present day activities. For example, the Final EA states “[i]t should also be noted that other routine ANG activities conducted by the 162 WG out of Tucson International Airport (TIA), which is located approximately 4.7 miles southwest of DMAFB (Figure 1-2) are completely separate from the actions described herein and, thus, are not discussed in this EA.” SOF ¶82, Final EA, p. 1-3 (emphasis added) AR0025513. The fact that the activities are separate from the TFT activities does not prevent them from having an environmental impact that contributes to overall noise levels. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 12 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 13 - The analysis of cumulative impacts of TFT’s flights over Tucson’s residential neighborhoods also fails to take into account commercial and general aviation aircraft, which fly in and out of TIA and pass over midtown. SOF ¶83. Further, the cumulative impacts analysis also fails to consider the many medical, police, and other civilian helicopters that fly over midtown neighborhoods. DMAFB and TFT helicopters also fly over midtown, sometimes at very low elevation, especially when practicing landings at Banner UMC and TMC. However, those flights as well are ignored in the Final EA. SOF ¶84. The Final EA does identify numerous actions that take place on or in association with DMAFB, including operations/flights of the 563rd Rescue Group, training by the Royal Netherlands Air Force in F-16s, “Angel Thunder,” a joint services exercise that occurs every 18 months and focuses on rescue missions, occasional overflights from other planes, both military and civilian (which includes F 35s from Luke Air Force Base), and daily flight operations by the various groups stationed at DM all year around which under-take “75,000 to 80,000 flight operations per year.” SOF ¶85, Final EA at 5-5, AR0025613. However, it fails to actually analyze the cumulative impacts of these activities on the human environment. Instead, it simply concludes, without any supporting analysis or explanation, “[m]ost other actions at or surrounding DMAFB may produce localized noise increases, primarily from ground activities (such as weapons firing ranges, field training exercises, or MILCON projects), so cumulative noise impacts would be localized and primarily on Federally owned land. The cumulative impacts identified for airspace, ranges, noise, or safety would not be significant, but will likely require more coordination between Albuquerque Air Route Traffic Control Center, the FAA Central Service Region, and military airspace managers.” Id. This conclusory statement provides no analysis or explanation and is precisely the type of “cataloguing” that the Ninth Circuit has warned against. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 13 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 14 - Second, with respect to cumulative impacts of past actions, the Final EA fails to analyze the cumulative effects of the no-action alternative, which the USAF has erroneously identified as TFT operations for the year 2009, rather than the program as it existed in 1978 (its last NEPA-compliant state) or alternatively, as it exists today. 3 SOF ¶91. Because a cumulative impacts analysis must consider the impacts of past actions, as well as present and reasonably foreseeable future actions, regardless of what time frame is used for the no-action alternative, the USAF is obligated to fully evaluate the full range of environmental impacts that have been foisted upon the affected community without any NEPA analysis since 1978. The Final EA also fails to address the fact that the multiservice operations and foreign military operations, though ongoing for some years, have never been subjected to the NEPA analysis that the law requires. SOF ¶92. The analysis of those operations should have included an exhaustive analysis of their impacts since their commencement. By failing to do either, the Final EA dramatically under-states the true impact that the TFT activities have had and continue to have on the Tucson population living and working in the DMAFB flight pattern. The Final EA also refused to consider the reasonably foreseeable impact of F-35 aircraft participating in the TFT or otherwise operating in the Tucson airspace. SOF ¶¶86- 87. In its response to comments it excused this omission by asserting that “[w]hile F-35 aircraft will be based at Luke AFB, there are no current plans for their participation in the TFT activities at DMAFB.” SOF ¶88, Final EA, p. 1-16, AR0025526. Of course, not only was the participation of F-35 aircraft entirely foreseeable at the time of the Final EA and FONSI, it was, by the Air Force’s own admission, reasonably foreseeable back in October 2010 when it held its “kick off meeting” for the initial OSB EA. See SOF ¶42. According to the minutes of that meeting, Scott Hines, one of the meeting participants, noted that the 3 See Section E infra. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 14 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 15 - United States Marine Corps was expected to receive F-35s by 2012 and “stated that if USMC requests participation in OSB using F-35s, then it will happen.” Id. quoting AR0006286. Although others also urged the consideration of the F-35 as part of future OSB operations (SOF ¶44), the NEPA liaison, Donald Calder Jr. rejected the idea, asserting incorrectly that “‘[r]easonably foreseable’ means the Air Force has made a formal decision to equip DMAFB and/or the 162 FW with these aircraft.” SOF ¶45, AR0012858. This resistance to even considering the potential impact that F-35s might have in the reasonably foreseeable future was revealed again shortly before the release of the Final EA when, in February 2015, two F-35s completed practice approaches at DMAFB. SOF ¶65. The Base received several complaints and the flyovers were reported in the local paper. Id. As the USAF debated whether such transient flights by F-35 should be included in the cumulative impacts analysis, internal documents demonstrate both that the Air Force was well aware of the likelihood of increasing F-35 activity at DMAFB and that the Air Force was not interested in being candid with the public about that likelihood. SOF ¶¶67-79. For example, in a discussion regarding a possible “bullet point” addressing transient aircraft, Lt. Col. Eilers, in an email, responded, “Whoa, wait a minute... I have an issue with this language being so specific.” SOF ¶67, AR0032549. He further acknowledged, “I suggest something a little less specific as I DO expect the F-35 use of our airspace to increase...” Id. (ellipsis and capitalization in original). In seeking an expert opinion on the effect that the F-35 flyovers would have on the noise contours, Mr. Calder admitted, “[t]he community has voiced their fear that this project will enable the AF to ‘sneak in’ F-35 training deployments to DMAFB without going through the NEPA process. We’ve maintained that if & when the AF decides to bring F-35’s to DMAFB, it would drive a separate NEPA action (and we’ve purposely kept any robust F-35-related analysis out of the document).” SOF ¶69, quoting AR0021198. This intent was reiterated in a later email when he wrote, “[a]gain, the EA team made the conscious decision to keep F-35 analysis out of Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 15 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 16 - this EA to prevent the Tucson community from claiming we’re bringing the F-35 to DMAFB through the back door and avoiding EIAP.” SOF ¶72, quoting AR0032483. Although the early drafts of the “bullet point” specifically referenced F-35s, the version ultimately included in the Final EA omitted all reference and just referred to “itinerant overflight operations.” SOF ¶¶73-79. However, as with other activities catalogued by the USAF in the Final EA, there was no analysis of the actual impact. While it appears that the Air Force attempted to do some rudimentary analysis of the impact transient flights have on the noise contours, that information was not included in the Final EA. SOF ¶77-79. But even if it had been, the impact of the F-35 is much more significant than the noise contours. The discussion by the USAF correctly assumed that DNL contours will hide the impacts of F-35s. In fact, Ms. Engelman, who is responsible for DM’s Noise issues, observed that, if F-35s are included in the “mix” of F-18s and F-22s, “it shouldn’t change the contours, although the community will notice the F-35 aircraft using the base because it sounds different.” SOF ¶76 quoting AR0025342 (emphasis added.) Moreover, the concern regarding the F-35 extends beyond the presence of “transient” or “itinerant” aircraft. The plaintiffs also expressed legitimate concern that future TFT operations would include F-35s. That was not only “reasonably foreseeable” it has now already occurred. In February 2017, F-35 aircraft participated in the Heritage Training and Certification Course hosted by DMAFB. SOF ¶90. Thus, the community’s concerns that the F-35s would “sneak in the back door” through the TFT operations were not only entirely justified, they were prescient. Finally, in a response to a comment regarding the inadequate cumulative impacts analysis set forth in the Revised Draft EA, the Final EA appears to acknowledge that its analysis does not comply with the NEPA requirement but states that “[t]he Air Force believes the cumulative impact analysis is sufficient to comply with the spirit and intent of CEQ regulations.” SOF ¶93, Final EA p. 1-17 (emphasis added) AR0025527. That is not Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 16 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 17 - what the law requires. Because the USAF failed to fully evaluate the cumulative impacts of the proposed action on the human environment, the Final EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law. C. The Final EA’s Noise Analysis Was Inadequate Because it Relied Upon an Out- of-Date Noise Study, it Failed to Consider Supplemental Metrics, it Used a Computer Program That Was Unverified, and It Failed to Consider Any Mitigation Measures. The USAF’s discussion of noise impacts on the affected community in the Final EA was inadequate because it was fundamentally incomplete in several important ways. Agencies are obligated under NEPA to insure the professional integrity, including scientific integrity, of the discussions and analyses in their documentation. 40 C.F.R. §1502.24. The Air Force has fallen short of this requirement in several respects in regards to the important issue of noise impacts. 1. The noise analysis is based on a Draft Noise Study that is out of date and unreliable. The Final EA’s reliance on a draft 2009 update of a draft 2007 update of a 1992 Air Installation Compatible Use Zone (AICUZ) noise study renders its noise analysis unreliable and, therefore, arbitrary and capricious. In Appendix C to the Final EA, the USAF sets forth the assumptions underlying the day-night average sound levels (DNL) that it used to identify the sound contours for the TFT operations. SOF¶95. According to the Table 2-1, the riskiest assumption was the use of data from a 2007 draft update of a 1992 AICUZ study. Id. The 2007 data was to be used in an AICUZ update that had been cancelled so it was never finalized. Id. Thus, it was still in draft form when the noise analysis was finalized. Id. No explanation was offered as to why the Air Force didn’t use more recent data. Notably, the questionable use of this assumption was noted by USAF noise expert Fred Pierson Jr. who, when asked to analyze the effect that F-35s might have on the DNL noise contours, made the following unsolicited observation about Appendix C’s list of assumptions: “it uses the draft 2009 AICUZ for operations of other visiting aircraft (as is) Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 17 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 18 - which were taken from 2007 noise study and adjusted to a 2009 level. Considering the public concern, I am surprised that they didn’t gather new data.” SOF ¶71, quoting AR003244. It is well-established that NEPA’s “hard look” requires an agency to obtain the information necessary to make an informed decision. See, e.g. Nat’l Parks & Conserv. Assoc. v. Babbitt, 241 F. 3d 722, 733 (9th Cir. 2001). In National Parks, the Ninth Circuit took the Park Service to task for its failure to determine what impact increased vessel traffic would have on Glacier Bay. Id. The court noted that the lack of data undermined the agency’s EA and observed that the EA itself established both that the information “may be obtainable” and that “it would be of substantial assistance in the evaluation of the environmental impact of the planned vessel increase.” Id. Thus, because the Park Service’s statement of reasons did not provide a convincing explanation as to why the requisite information could not be obtained prior to taking the proposed action, the court held that the agency had failed to take the “hard look.” Id. The same lack of diligence is present in this case. Instead of obtaining updated noise data that would allow it to make an informed decision, the Air Force continued, even in the Revised Draft EA released in 2014, to rely upon a seven year old draft study. It has offered no explanation for its failure to gather more recent data and like the Park Service in National Parks has failed to take a “hard look” in its noise analysis. 2. Contrary to applicable Department of Defense Guidance, the Final EA only uses DNL contours to evaluate noise impacts and refuses to supplement its analysis with other metrics. The Final EA uses only one method to analyze the impacts of annoyance to the community from noise: day-night average sound levels or “DNL.” The Final EA justifies this on its page 3-4: “DNL is the community noise metric recommended by the USEPA and has been adopted by most Federal agencies (USEPA 1974).” AR0025552. This USEPA recommendation is forty years old, and while DNL analysis is still commonly used, acoustics experts, most importantly within the Department of Defense (DOD), have recognized during Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 18 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 19 - the past four decades that DNL analysis tells only part of the story. For environments affected by short-duration, high-SEL events such as aircraft noise, DNL analysis fails to describe the most serious impacts. In a publication titled Community Annoyance Caused by Noise From Military Aircraft Operations (Department of Defense, December, 2009) DOD forthrightly recognized the shortcomings of correlating DNL and the FICON Curve (updated from the Shultz Curve) for predicting community annoyance. AR0032820-34. Issues identified regarding DNL and the FICON Curve include “methodological questions, errors in measurement of both noise exposure and reported annoyance, data interpretation differences, and the problem of community response bias . . .[and] an extraordinary amount of scatter in the data.” Id. at AR0032825. In recognition of the limitations of DNL and the FICON Curve as a useful methodology for prediction, DOD published a guide to using supplemental metrics, Improving Aviation Noise Planning, Analysis and Public Communication with Supplemental Metrics (December, 2009, hereinafter “Supplemental Metrics”) “to guide the Military Services in providing more useful information on the noise environment than is available through solely using the long-term cumulative metrics such as DNL.” p. 1-1, AR0032861 (emphasis added). As stated in the guide: When using DNL to communicate noise exposure to the average citizen residing near a military airfield, a typical response is, “I don’t hear averages, I hear individual airplanes.” Airport neighbors often become angry and frustrated trying to understand explanations of noise exposure solely in terms of average sound energy with the DNL metric, particularly when they are trying to grasp the impact of . . . increased operations and aircraft changes. Id. at 2-1, AR0032863. While the guide is clear that DOD is not replacing DNL, it provides considerable rationale for supplementing DNL with several other methodological approaches that are intended to provide more useful information on the noise environment than is available through solely using the long-term, cumulative metrics such as DNL. Importantly, the need for supplemental noise metrics is characterized as being two-fold: “(1) to produce more detailed noise exposure information for the decision process; and (2) to improve Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 19 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 20 - communication with the public about noise exposure from military activities.” Id. at 1-1, AR0032861. Thus, DOD’s articulation of need for supplemental metrics mirrors perfectly the purposes of the NEPA process. Along with the Guide, DOD also published a Technical Bulletin on Using Supplemental Noise Metrics and Analysis Tools (December, 2009)(Bulletin) AR0032835-55. The Bulletin provides detailed guidelines for the analysis and presentation of  Maximum A-Weighted Sound Levels (Lmax)  Sound Exposure Level (SEL)  Equivalent Sound Level  Time Above a Specified Sound Level (TA)  Number-of-Events Above a Specified Sound Level (NA) Id. at 7; AR0032841. See also Supplemental Metrics at 5-4 through 5-7 AR003288-91. Guidelines on how to use these supplemental metrics are published in Table 6-1. Supplemental Metrics. at 6-3. While DNL is still characterized as the best metric for long-term annoyance, DOD warns that, “it is inadvisable to use the average annoyance curve [Schultz/FICON] to predict the specific number or percentage of the local exposed population who are expected to be highly annoyed by aircraft operations at a given DNL.” Id. (emphasis in original). As DOD explains in Supplemental Metrics: While the Federal agencies have accepted DNL as the best metric for land use compatibility guidelines, reducing the description of noise exposure to a single value of DNL may not help the public understand noise exposure. Simply looking at the location of their home on a DNL contour map does not answer the important questions: how many times airplanes fly over, what time of day, what type of airplanes, or how these flights may interfere with activities, such as sleep and watching television. The number and intensity of the individual noise events that make up DNL are critically important to public understanding of the effects of noise around airports. What is needed is a better way to communicate noise exposure in terms that are more easily understood. Supplementing DNL with additional metrics will help the public better understand noise exposure. Supplemental Metrics at p. 2-1 AR0032863. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 20 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 21 - Supplemental Metrics recommends that results of the above metrics be presented in tables and/or as contour lines on maps (just as the Final EA presents DNL contour lines). Id. at 5-10. The publication includes several real-life examples of both. The contour maps are particularly striking. At a glance, they provide very important information that is totally absent from DNL metrics. For example, at Marine Corps Air Station Cherry Point in North Carolina, the contour line for NA above 90 dB SEL extends eight and a half miles beyond the DNL 65 dB contour line. See id., Figure B-6 at p. B-16, AR0032988. This is crucial information. As Supplemental Metrics explains, the above metrics “are as important to the project stakeholders as they are to communicating with the general public, because they enable the project managers and decision makers to make better-informed decisions.” Id. at 5-1 AR0032885. In their Comment Letter on the Revised Draft EA, the plaintiffs urged the USAF to supplement its noise analysis with other metrics in accordance with the DOD guidance. As plaintiffs pointed out, “The EA does contain what it characterizes as ‘representative SEL’ for some aircraft to be used at DM, EA at 3-5, but this generic listing of SEL levels is hardly an analysis of SEL impacts of the TFT aircraft, and even omits many of the planes expected to be flying under the auspices of the TFT.” Comment Letter at 5, SOF ¶107, AR 0023081. Plaintiffs further explained that supplemental metrics would also address flights outside of the flight paths reflected in the DNL contours. As plaintiffs pointed out, several residents have noted ongoing incidents in which aircraft from DM are flying outside of the flight paths presented in the EA. Indeed, Air Force representatives have stated that the pilots are allowed to fly anywhere in the Tucson. For example, in a response to a citizen’s complaint about the noise from overhead aircraft, DM Public Affairs Officer, Sarah R. Ruckriegle, 1st Lt. wrote: Our pilots operate in dynamic airspace with a myriad of constantly changing factors that will affect their actual ground track. While they follow patterns that are reflected in graphics, which have been provided to the public by the base, there are no airspace restrictions, regulations, agreements or other mandates that restrict our pilots to specific ground tracks or street intersections. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 21 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 22 - The graphics we have provided are intended to be tools to help residents and other interested parties become familiar with our most common traffic flow and the approximate vicinities where they will most commonly see our aircraft. Letter dated July 29, 2013, attached as Exhibit 1 to Plaintiff’s Comment Letter, AR002510. In the Final EA, however, the USAF refused to include supplemental metrics in its analysis of noise impacts and continued to rely exclusively on DNL. The only mention of any other metric found in the Final EA is in Section 3.1, which includes Table 3-1 “Representative SEL for Typical Aircraft under Flight Track at Various Altitudes.” SOF ¶109, AR0025553. However, this very limited discussion is in the affected environment section and SEL is never addressed in the impacts analysis. Moreover, even this generic listing of SEL levels omits many of the planes expected to be flying under the auspices of the TFT. Id. In response to the Plaintiffs’ comments urging the consideration of Supplemental Metrics and the DOD guidance, the USAF simply stated, “while the Defense Noise Working Group in 2009 set forth tools and guidelines to use with supplemental metrics such as SEL, these were not mandated.” Final EA, p. 1-15, SOF ¶110, AR0025525. This response, however, is both inadequate and contrary to the law. First, the Air Force misapprehends its responsibilities under NEPA. The fact that the use of the supplemental metrics is not an Air Force requirement does not mean that their use is not required under NEPA. Depending on the circumstances, agencies may be required under NEPA to utilize analysis that goes beyond the requirement of other statutes or policies. For example, in South Fork Bank Council of Western Shoshone of Nevada v. U.S. Dep’t of the Interior, 588 F.3d 718, 726 (9th Cir. 2009), the Court found that the Bureau of Land Management failed to take a “hard look” at air impacts despite the fact that the facility at issue had been permitted under the Clean Air Act. See also Great Basin Res. Watch v. BLM, 844 F. 3d at 1103-4 (held reliance on Clean Air Act permit to satisfy agency’s obligation to Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 22 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 23 - analyze air impacts “evinces a misunderstanding of the nature of NEPA and its relationship to ‘substantive’ environmental laws such as the Clean Air Act.”). Second, while an agency may deviate from its own policy or practice, it is obligated to supply a reasoned analysis for the departure and the failure to provide a coherent and legally supportable explanation for such a deviation is arbitrary and capricious. Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-3 (1983). Inherent in the State Farm requirement that an agency has an obligation to provide a meaningful explanation is the agency’s obligation to follow its own prescribed guidelines for decisionmaking or, at the very least, coherently explain why it is not applying them in a particular situation. Where an agency “abandon[s] its own established procedure” set forth in guidelines for addressing certain matters, it “catapult[s] over the real issues and analytical work required by its handbook” and that “improper application of its own handbook” means that the agency necessarily “did not adequately explain its result.” Town of Barnstable, Mass. v. Fed. Aviation Admin., 659 F.3d 28, 34-36 (D.C. Cir. 2011). In Town of Barnstable, the FAA ignored guidelines in its own handbook to conclude that a proposed wind farm did not pose a flight hazard; however, the court found that the provisions ignored by FAA “suggest that the project may very well be such a hazard.” Id. As the court noted, “[t]he FAA repeatedly notes in its brief that the handbook ‘largely consists of criteria rather than rules to follow.’” Id. at 36. The court agreed, but still remanded the decision to the agency for proper “application of the handbook’s guidelines” because “it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion.” Id. citing Public Citizen v. Fed. Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993). Here, there is no question that the DOD guidance recommends the use of supplemental metrics in assessing the full impact of aviation noise in the NEPA context. The fact that supplemental metrics aren’t mandated by the DOD guidance does not excuse the Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 23 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 24 - USAF, if it chooses to ignore that recommendation, from its obligation to provide a reasoned explanation for that decision. As the D.C. Circuit properly recognized, the fact that a guideline isn’t mandatory is, standing alone, not a legitimate explanation. 3. The Air Force’s reliance on NOISEMAP for modeling the DNL contours was unreasonable because the version used for the Final EA has not been verified and the statement in the Final EA asserting it was “routinely verified” is refuted by the record. In the Final EA, the USAF relies upon the computer program NOISEMAP to model the noise impacts of the proposed action. SOF ¶111. During the public comment period, plaintiff Gary Hunter sought information from the USAF regarding the reliability of the program. As the record show, he raised the issue on November 3, 2014 at a MCRC meeting. As the deadline for the public comment period neared, he reached out to Capt. Osborne and Joseph Doyle to request an answer to his question. SOF ¶112, AR0025193. On Monday, November 24, 2014, the day before the close of the comment period, he received an email from Capt. Osborne. In it, Capt. Osborne stated, “Sir, regarding your question on NOISEMAP’s accuracy, let me first apologize for us taking so long to get back to you. We’ve been calling up and down the chain trying to find someone who knew the answer, and we ended up having to scour decades –old government regulations to come up with a good response.” SOF ¶113, AR0025190. Capt. Osborne then proceeded to provide Mr. Hunter with links to two technical documents. Id. The first document was released 24 years prior and described NOISEMAP 6.0, which was not the model used in the Revised Draft EA. As Mr. Hunter observed in his response to Capt. Osborne’s email, “[t]he Air Force has made substantial changes to Noisemap since then; in fact, if I remember correctly, data was still input to Noisemap via punchcards when the first document was released.” SOF ¶114, AR0025189. The second link was to a document that was 32 years old, and described inconclusive tests made at Laughlin AFB and Homestead AFB. Id. On the final day of the public comment period, Mr. Hunter made a final request of Capt. Osborne: “Are you or Mr. Doyle or CEC aware of any attempts by the Air Force or Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 24 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 25 - any other entity to verify Noisemap’s reliability in the years since 1979?” SOF¶115, AR0025187. Capt. Osborne’s response was “Sir we are not aware of any further attempts.” Id. Yet, when the Final EA was released, Section 4.1 dealing with Noise had been edited to include the following sentence: “The programs [Noisemap] are required by the Air Force to be used in the EIA process to analyze aircraft noise and the models are routinely verified by the Air Force.” SOF¶116, AR0016603, p 4-1 of the “Pre-Final” EA highlighting changes to the Revised Draft EA (emphasis added). The Final EA does not cite to any study or provide any back- up documentation to support this claim. Computer modeling has long had a place in NEPA analyses. Natural Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1391 (D.C. Cir. 1985). As long as an agency reveals the data and assumptions upon which a computer model is based, allows and considers public comment on the use or results of the model, and ensures that the ultimate decision rests with the agency, not the computer model, then the agency use of a computer model to assist in decision making is not arbitrary and capricious. Id; see also Connecticut v. U.S. Envtl. Prot. Agency, 696 F.2d 147, 158-59 (2d Cir. 1982)(agency’s use of computer model not arbitrary or capricious if the agency recognized the limitations of the computer model and explained the agency decision). However, as the Herrington court noted, the agency is under a continuing duty to evaluate the accuracy of a computer model, through empirical testing if possible, and to abandon or improve the model if it is shown to be unreliable. 768 F.2d at 1391. The Ninth Circuit has held that an agency’s reliance on a methodology that uses incorrect assumptions or incomplete data does not constitute the “hard look” mandated by NEPA. Native Ecosystems Council v. Tidwell, 599 F.3d 926, 937 (9th Cir. 2010)(methodology applied by the Forest Service to measure habitat conditions was flawed and did not constitute the requisite “hard look” mandated by NEPA)(citing Native Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 25 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 26 - Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 964-65 (9th Cir. 2005)(recognizing that the Forest Service’s reliance on incorrect assumptions and/or data did not meet the agency’s obligation to take a “hard look” under NEPA)). Further, an agency’s misrepresentation of scientific information, whether intentional or not, is sufficient reason to find the NEPA analysis lacked scientific integrity. See, e.g., Earth Island Institute v. U.S. Forest Serv., 442 F.3d 1147, 1160-67, abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). Here, the Air Force used a version of a computer program that had not been verified for accuracy since 1979, and there is no evidence that the actual version used in the Final EA had ever been verified. Rather than address this deficiency in its noise analysis, which had come to light during the public comment process, the Air Force simply asserted—with no supporting documentation—that the modeling program was “routinely verified.” That falls far short of the “hard look” and transparency that NEPA requires and shows utter disrespect for the good faith public participation by Mr. Hunter. 4. By ignoring mitigation, the Air Force has failed to fully evaluate the extent of the noise impacts. Because the Final EA contains no discussion of mitigation measures that might be appropriate for affected residents and communities, it has failed to fully evaluate the impact that the expanded TFT operations have on the surrounding neighborhoods, particularly for people who live within the loudest noise corridors. As the Air Force knows, the law is clear that: [O]ne important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences . .. . . . [O]mission of a reasonably complete discussion of possible mitigation measures would undermine the “actionforcing” function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects. An adverse effect that can be fully remedied by, for example, an inconsequential public expenditure is certainly not as serious as a similar effect that can only be remedied through the commitment of vast public and private resources. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 26 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 27 - Robertson, 490 U.S. at 351-351. The Council on Environmental Quality (CEQ) reemphasized the importance of mitigation under NEPA in the context of both EAs and EISs. As the guidance points out, the purpose of compliance with NEPA is to prevent or eliminate damage to the human environment and mitigation measures are one way to achieve that goal. Memorandum for Heads of Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact from Nancy H. Sutley, Chair, Council on Environmental Quality, January 14, 2011. The Air Force itself recognizes and incorporates the requirement of identifying and analyzing mitigation measures in its NEPA regulations. That regulation states that the NEPA documents must indicate “clearly” whether mitigation measures must be implemented and must specifically identify which mitigation measures, if any, have already been incorporated into the proposal and which are being proposed. As the Air Force regulations correctly notes, “[b]oth the public and the Air Force community need to know what commitments are being considered and selected, and who will be responsible for implementing, funding and monitoring the mitigation measures” 32 C.F.R. § 989.22. Despite the mandate to identify potential mitigation measures for public and interagency review and comment, the Final EA ignores mitigation measures entirely. SOF¶117. The USAF attempts to excuse this oversight in its response to comments by asserting that “[a]dverse impacts did not reach significant levels such that mitigation became necessary.” SOF ¶118, Final EA 1-11 AR0025521. However, this justification ignores the Supreme Court’s explanation regarding the purpose of discussing potential mitigation measures. According to the Robertson Court, a discussion of how adverse impacts might be mitigated is critical to evaluating their severity. By concluding that the adverse impacts are not significant without first considering the extent to which they might be mitigated, the Air Force has not taken the requisite “hard look.” Moreover, by ignoring the challenge that Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 27 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 28 - meaningful mitigation would present, the Air Force is able to downplay the full extent of the impact that its proposed action, when combined with its past action, has had on the nearby community. By ignoring its responsibilities under NEPA as it expanded the OSB and TFT programs, the Air Force was also able to avoid its obligation to mitigate the adverse impacts to the surrounding neighborhoods as those expansions were happening. Certainly at this point, the people living in what is now a 70dB zone are entitled to have the USAF, at the very least, consider whether there are any measures it might take to mitigate the noise that it has foisted on those residents. D. By Focusing Solely on Schools and Daycares in the Loudest Contour the Final EA Fails to Adequately Impacts on Children. Executive Order 13045 (Protection of Children) (EO 13045) requires an assessment of “health risks and safety risks that may disproportionately affect children.” Executive Order 13045 of April 21, 1997 62 FR 19885, 19885. The impact of noise on the cognitive development of children has been recognized in the scientific literature. For example, a 2011 study by the World Health Organization (and included in Plaintiffs’ comments) addressed at length the adverse impact that airport noise in particular has on the cognitive development of children. “Burden of disease from environmental noise: Quantification of healthy life years lost in Europe,” pp. 45-53 (WHO Study) SOF¶120, AR 0002920-2929. EPA has advised in a 2012 memorandum regarding “Addressing Children’s Health through Reviews Conducted Pursuant to the National Environmental Policy Act and Section 309 of the Clean Air Act,” that NEPA documents, including environmental assessments, should consider the impact that noise can have on children’s health and learning, especially when it occurs near homes, schools, and daycare centers. August 14, 2012 Memorandum from Susan E. Bromm, Director, Office of Federal Activities, and Peter Grevatt, Director, Office of Children’s Health Protections, to Regional 309 Environmental Review and Regional Children’s Environmental Health Coordinators, available at https://www.epa.gov/sites/production/files/2014-08/documents/nepa-childrens- health-memo-august-2012.pdf. SOF¶121. EPA advises that noise can impact children’s Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 28 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 29 - learning and stresses that when evaluating military bases or training, agencies need to consider the impact that an increase in noise will have upon residences, schools, or child care facilities. Id. at 7. The Final EA purports to address the impacts to children but does so in a very cursory fashion. Section 3.3.5 is entitled “Protection of Children” is a single paragraph that references EO 13045, but the bulk of the paragraph simply discusses the EO requirements, and the reason it was issued. SOF¶122. The sole “analysis” included in this section is the assertion that “[s]chools and day care centers in the region were investigated, and it was determined that no schools and one day care center licensed for up to 60 children are located with the current 65 dBA DNL contour.” Id., Final EA Section 3.3.5, p. 3-23, AR0027475. This assessment, however, falls far short of what is required under EO 13045. As plaintiffs advised in their Comment Letter on the Revised Draft EA, there are several schools within the flight pattern of Davis-Monthan, and one of them, the Griffin Foundation Charter School (elementary and middle school) appears to be barely outside the 65 dB noise contour.4 SOF¶124, AR0027685. Griffin has an enrollment of approximately 400 students, and also includes a day care facility. Id. Other nearby schools while not necessarily as close to the 65dL flight contour are nonetheless close enough to be impacted by the increased noise (a fact that would likely be established if a more comprehensive noise analysis that included the supplemental metrics recommended by DOD were undertaken). Id. Moreover, the noise impacts upon children are not limited to noise experienced in the school or daycare setting. The impact on children living within the flight patterns must also be taken into account. Much of the noise contour identified in the Final EA extends over residential neighborhoods. According to the Final EA, up to 128 single family residences 4 Plaintiffs also noted that Griffin School is located in the very same shopping center that was the site of a 1967 crash of a Davis-Monthan jet. http://www.tucsonfirefoundation.com/wp-content/uploads/2012/07/1967-Food-Giant-2nd- Ed.pdf Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 29 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 30 - and 4 multifamily residences are within the 65dBA DNL contour alone. SOF¶126. Children living in those residences will be adversely impacted by the noise and the Air Force has an obligation under NEPA and EO 13045 to undertake a meaningful evaluation of the nature and extent of those impacts. Nor is the impact limited to children living within the 65dBA DNL contour. Impacts to health are experienced at lower levels as well. The WHO study found that levels as low as 30 dBA could disturb sleep and result in documented health impacts. See WHO Study, Table 4.1, Ranges for the relationship between nocturnal noise exposure and health effects in the population, p. 58. SOF¶ 127, AR0002934. The DOD’s Operational Manual also recognizes that high levels of noise in the classroom can lead to physiological changes in children, and some children—for example those for whom English is a second language— are particularly susceptible. SOF¶¶128-9. By failing to address impacts on children living both within the 65dBA DNL contour, and children living outside the contour but within the flight paths the Final EA completely ignored the 2011 WHO Study and the EPA memorandum, as well as other studies noted by various other commenters. SOF ¶130. As a result, the Final EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law. E. By Ignoring More Recent Studies, the Final EA Fails to Adequately Evaluate Health Impacts Generally. The USAF failed to adequately evaluate the health impacts of the increase in TFT sorties and ignored relevant studies regarding the adverse health effects of noise from airports. One of the purposes of the NEPA is, “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321(emphasis added). One of the goals with which the Federal government is charged is, “to use all practicable means, consistent with other essential considerations of national policy . . . . to assure for all Americans safe, healthful, productive and aesthetically and culturally pleasing surroundings.” 42 U.S.C. § 4331(b)(2) (emphasis Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 30 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 31 - added). Similarly, the regulatory definition of “effects” and “impacts” includes ecological, aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. 40 C.F.R. 1508.8(b) (emphasis added). Finally, the U.S. Supreme Court has stated that, “[a]ll the parties agree that effects on human health can be cognizable under NEPA and that human health may include psychological health.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 771 (1983). Notably, the Department of Defense long ago recognized that the health effects, both the physiological effects and psychological effects (excluding direct effects on hearing), were important issues in relationship to overflights and noise. While earlier reports noted that, for example, “‘[t]he results of early studies conducted in the United States, primarily concentrating on cardiovascular response to noise, have been contradictory,” DOD’s Supplemental Metrics, discussed above, recognized some progress in understanding the health effects of noise and noted that more research was needed. Supplemental Metrics, pp. 3-14 - 3-16 AR0032878-80. In their Comment Letter to the Revised Draft EA, Plaintiffs raised the issue of health impacts of the proposed action, and in particular, the heath impact of noise. Plaintiffs alerted the USAF to a 2013 study by the Harvard School of Public Health and Boston University School that analyzed noise impacts from 89 airports in the United States and utilized data for approximately six million study participants (2013 Harvard Noise Study). SOF ¶133. In the 2013 Harvard Noise Study, noise levels were estimated “at the centroid of each census block surrounding each of the 89 airports out to a minimum of 45 dB . . . .” The study “found a statistically significant association between exposure to aircraft noise and risk of hospitalization for cardiovascular diseases among older people living near airports. This relation remained after controlling for individual data, zip code level socioeconomic status and demographics, air pollution, and roadway proximity variables.” 2013 Harvard Noise Study at p. 6, SOF ¶134. Plaintiffs also referenced a study of individuals living in the Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 31 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 32 - vicinity of Heathrow Airport in London that had reached similar conclusions at about the same time as the American study. SOF ¶135. In the Final EA, the USAF states, “[t]he impact of aircraft noise on physical and mental health has been the subject of numerous studies. Studies have examined impacts from various sound levels and length of exposure, with some studies indicating that there is a relationship between aircraft noise and aspects of physical and mental health, but others showing contradictory or inconclusive results.” SOF¶136, Final EA at 3-25 through 3-26, AR0025573-74. The Final EA goes on to very briefly discuss a 2008 update to a 1985 Transportation Research Board/National Academy report (TRB report) substantiating contradictory studies and a 2000 Federal Interagency Committee on Aviation Noise (FICAN) report summarizing research on the effects of aircraft noise on classroom learning. SOF¶137 The Final EA concludes by stating that the TRB report “and others report that further research is needed to establish definitive causal relationships.” SOF¶138, Final EA at 3-27, AR0025575. However, the Final EA refuses to consider supplemental metrics and totally ignores the 2013 Harvard Noise Study which provided a much finer degree of analysis, controlling for many of the factors earlier studies had identified, as well as other studies cited by Plaintiffs in their comment letter. SOF¶139, Final EA at AR00255771-75. Agencies are free to reject critical comments on their analysis so long as credible opposing views are identified and an agency explains why comments do not warrant further agency response, “citing the sources, authorities, or reasons which support the agency’s position. . . .” (40 C.F.R. 1503.4); however, the USAF has an obligation under NEPA to keep itself informed of the latest research results, including, but not limited to the recent reports identified in Plaintiffs’ comment letter. (40 C.F.R. § 1502.22(a)). “[G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.” League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 689 F.3d Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 32 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 33 - 1060 (9th Cir. 2012). Because the Final EA fails to fully and adequately address the health impacts its proposed action has on the Tucson residents living within the TFT flight pattern, the Final EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law. F. By Using 2009 as its Baseline, the Final EA Fails to Use an Appropriate “No Action” Alternative to Fully Evaluate the Impact of its Proposed Action. The USAF also failed to use an appropriate “no action” alternative in the Final EA. In order to “provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement,” an EA must evaluate alternative actions. 40 C.F.R. § 1508.9(a)(1) & (b). Here again, the Air Force has promulgated its own regulation adopting this requirement. 32 C.F.R. § 989.8 (c) (“Except where excused by law, the Air Force must always consider and assess the environmental impacts of the ‘no action’ alternative. ‘No action’ may mean either that current management practice will not change or that the proposed action will not take place. If no action would result in other predictable actions, those actions should be discussed within the no action alternative section. The discussion of the no action alternative and the other alternatives should be comparable in detail to that of the proposed action.”) Federal regulations explicitly require that environmental review be timely. “Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. § 1501.2. Consistent with this requirement, the Ninth Circuit has repeatedly held that dilatory or ex post facto environmental review cannot cure an initial failure to undertake environmental review. See, e.g. West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 (9th Cir. 2000) (holding that if completion of the challenged action were sufficient to moot a NEPA claim, an agency “could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine. Such a result is not acceptable”). Therefore, where an agency has failed to undertake the required NEPA analysis for prior Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 33 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 34 - decisions, it may not attempt to validate those prior decisions in a subsequent NEPA analysis that fails to remedy the earlier omission. See, e.g. Pitt River Tribe v. U. S. Forest Serv., 469 F.3d 768 (9th Cir. 2006)(held that where agencies never took the requisite “hard look” at whether the Medicine Lake Highlands should be developed for energy at all, and by the time the agencies completed an EIS, “the die already had been cast,” the 1998 lease extensions and the proposed development of the invalid lease rights violated NEPA); Friends of Yosemite Valley v. Kempthorne, 520 F. 3d 1024, 1037-1038 (9th Cir. 2008)(The court rejected the Park Service’s decision to use components of a 2000 Comprehensive Management Plan that had previously been struck down by the court as the basis for its No Action alternative; the court held that the No Action alternative may not “assume the existence of the very plan being proposed.”) As the Ninth Circuit recently recognized in Great Basin Resource Watch v. BLM, “[e]stablishing appropriate baseline conditions is critical to any NEPA analysis.” 844 F. 3d at 1102. As the court explained, “‘[w]ithout establishing the baseline conditions which exist . . . before [a project] begins, there is simply no way to determine what effect the [project] will have on the environment and, consequently, no way to comply with NEPA.’” Id. quoting Half Moon Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988). Here, the Final EA assumed the existence of an Operation Snowbird Program that permits year-round flying of aircraft other than A-10s. But there is no NEPA-compliant agency decision underpinning these activities. Rather, they are taking place with gross disregard for NEPA’s requirement that all federal actions undergo prior environmental review. Because there is no current NEPA-compliant decision authorizing year-round overflights by aircraft other than A-10s, the No Action alternative in the Final EA was improperly defined. The only NEPA-compliant OSB program is the one that was in existence in 1978. That, not the program as it existed—in violation of NEPA—in 2009, should have been used as the No Action alternative. The citizens of Tucson were, and Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 34 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 35 - remain, entitled to have the decision to expand the OSB program from a winter only program limited to A-10 aircraft to a year round program involving louder and more dangerous aircraft fully evaluated as NEPA requires. In its early planning meetings and the public scoping meetings the Air Force proposed using a 2002 Combat Search and Rescue Environmental Assessment that had ostensibly included analysis of OSB activities. SOF¶¶43 & 46. However, as work on the EA progressed, a decision was made to use a 2009 baseline instead. SOF ¶ 47. This change was addressed in the Draft EA, which was released in July 2012. SOF ¶48. The Air Force explained that because the level of sorties in the CSAR EA did not represent the status quo, it was abandoned as the baseline. The Air Force arrived at the 2009 baseline by averaging the number of sorties for the last fiscal years for which it had complete operational data and concluded that 2009 was the most representative year. Id. Notably, after the close of the comment period, when the Pentagon put the OSB EA on hold (SOF¶54), Mr. Calder advised the “EA Team” that among the recommended revisions to the EA was “Revise Chapter 2 of the Draft EA to reflect a current baseline FY12 Snowbird sortie count as the No Action alternative (1500 sorties/yr) instead of FY2009 sorties numbers, . . . .” SOF ¶55. Yet, in September of 2013, the decision was made to continue to use the 2009 year baseline. SOF ¶56. That decision was reflected in both the Revised Draft EA and the Final EA. SOF ¶¶58, 146 In the Final EA, the USAF justified using 2009 as the “no action” alternative by claiming that 2009 was the better alternative because it is “similar to the average number of annual sorties (1,380) flown by visiting units. . . .” SOF ¶146, Final EA at 2-5, AR0027439. However, there is nothing in applicable law or guidance regarding the “no action” alternative that suggests that an agency can take average activity over a seven year period and call that the “no action alternative.” Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 35 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 36 - Rather, the preponderance of the guidance on point weighs in favor of using the flights being experienced now and perhaps over the past one or two years. Budget constraints, part of the rationale for the decrease in flights in the past few years, may well continue into the foreseeable future; other factors, especially those dealing with responses to unrest in other parts of the world, are hard to predict. What is known is what is happening now, even if it was not the decision made originally. See Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 129, W.D. Wash. 1994 (affirmed that the current management was the correct “no action” alternative even though it was different from the alternative chosen in the existing management plan, which had been held invalid by a court). That is why, in their comments to the Revised Draft EA, Plaintiffs suggested that if the USAF did not use 1978 as the “no action” alternative, then the only acceptable alternative was to use the current program as recommended by CEQ for ongoing programs. This is consistent with CEQ’s direction on characterization of the no action alternative in the face of ongoing actions: Section 1502.14(d) requires the alternatives analysis in the EIS to “include the alternative of no action.” There are two distinct interpretations of “no action” that must be considered, depending on the nature of the proposal being evaluated. The first situation might involve an action such as updating a land management plan where ongoing programs initiated under existing legislation and regulations will continue, even as new plans are developed. In these cases “no action” is “no change” from current management direction or level of management intensity. To construct an alternative that is based on no management at all would be a useless academic exercise. Therefore, the “no action” alternative may be thought of in terms of continuing with the present course of action until that action is changed. Consequently, projected impacts of alternative management schemes would be compared in the EIS to those impacts projected for the existing plan. In this case, alternatives would include management plans of both greater and lesser intensity, especially greater and lesser levels of resource development. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 36 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 37 - Question 3, Forty Most Asked Questions Concerning the Council on Environmental Quality’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026 (March 23, 1981, as amended; available at http://energy.gov/sites/prod/files/G-CEQ-40Questions.pdf 5 By using 2009 as the “no action” alternative, the USAF was able to dramatically understate the true impact of the TFT activities. The number of TFT sorties flown in 2009, 1408, is substantially greater than the number of TFT sorties flown in more recent years (for example, according to the USAF, there were 519 TFT sorties in 2013, 888 in 2012, and 782 in 2011). SOF¶ 144, AR0025535. Moreover, because the FONSI is based only upon the incremental change in impacts since 2009 rather than the full range of environmental impacts foisted on the affected community without any NEPA analysis since 1978, it is not based on the true impact that the TFT activities have had and continue to have on the Tucson population living and working in the DM flight pattern. G. The Final EA’s Environmental Justice Analysis Is Inadequate. In the Final EA, the Air Force acknowledges, as it must, that a disproportionate number of minority and low-income populations are affected by noise as compared to other populations in Tucson (Final EA, p. 3-22, Table 3-11). In fact, all but one of the adversely affected census tracts has been determined to be a geographic area that is disproportionately populated by minority or low income residents. Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” February 11, 1994, and the accompanying President Memorandum, include specific direction 5 However, even if it were to use the current program as the “no action” alternative, the Air Force would still, as noted above, be responsible for evaluating the impacts of the program from 1978 to the present in so far as it is able to identify and analyze cumulative effects of these past actions. This is particularly important here because, as noted elsewhere, not only has the Air Force failed to comply with NEPA since 1978 with regard to the OSB program, it has never completed a NEPA analysis on the other programs included in the Revised Draft EA and Final EA. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 37 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 38 - on environmental justice within the context of NEPA.6 In particular, Section 5-5 on “Public Participation and Access to Information” encourages federal agencies to translate crucial public documents, notices and hearings for limited English speaking populations and directs agencies to work to ensure that public documents, notices and hearings are concise, understandable and readily accessible to the public. The CEQ’s “Environmental Justice Guidance Under the National Environmental Policy Act” (December 10, 1997) provides more detailed guidance on integrating environmental justice issues into the NEPA process on these points (CEQ Guidance, pp. 11- 13). The EPA “Guidance for Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analyses,” August, 1998, also addresses incorporating environmental justice considerations into the NEPA process and provides even more detailed recommendations on outreach to environmental justice communities, including providing simultaneous translation of discussion at meetings, using local translators where possible, translation of key documents in their entirety, establishing comment lines and many more ideas. EPA EJ Guidance, p. 41, Exhibit 4. Finally, USAF’s own “Guide for Environmental Justice Analysis with the Environmental Impact Analysis Process (EIAP),” Department of the Air Force, November 1997, states that, “[p]ublic outreach and advertising of the process should be directed specifically toward minority and low-income groups, as well as toward the general public, to encourage these groups to identify themselves and their concerns. This effort should include coordination with federal, state, local, and tribal governments and agencies; local groups; community leaders; and social agencies in the local community to identify target groups and the channels (including non-English language where necessary) that would reach these groups.” Air Force EJ EIAP Guidance, p. 5, emphasis added. 6 Executive Order available at https://www.archives.gov/files/federal-register/executive- orders/pdf/12898.pdf Presidential Memorandum available at https://www.epa.gov/sites/production/files/2015-02/documents/clinton_memo_12898.pdf Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 38 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 39 - The Air Force guidance goes on to discuss identifying various social service agencies, religious organizations, public interest organizations and other such groups that may be working directly with the affected communities and gives detailed guidance on doing so. The Air Force guidance also states that: All minority and low-income groups thus identified should be specifically notified of the availability of any information requesting input into the planning process and any subsequent environmental justice documents available for review. . . . Information should be presented in clear, nontechnical language. It may be advisable to schedule separate, smaller scoping meetings at community locations where minority and low-income populations would feel more comfortable participating, such as a church, school or community center. Air Force EJ EIAP Guidance, p. 6. Although the Final EA claims that the USAF reached out to the affected communities, this statement is false both with respect to the original Draft EA and with the Revised Draft EA. The public notification for the availability of and the comment period on the Draft EA was seriously flawed. In the Draft EA, the statement is made that, “[s]imilar notices were sent confirming the availability of the Draft EA, in an attempt to provide meaningful involvement of the low-income and minority populations.” SOF ¶153, Draft EA p. 4-15 AR0026332. However, no notices were actually mailed regarding the Draft EA. Rather the Notice of Availability was published in the local newspaper, the base newspaper and posted to the DMAFB Snowbird EA site. SOF ¶153. A request was made to translate at least the executive summary of the Draft EA into Spanish, given the high preponderance of Spanish-speaking residents in the most directly affected neighborhoods. In response the USAF translated the executive summary (5 pages of 144 pages) that it posted on the DMAFB website on the last day of the initial comment period. Although the USAF extended the comment deadline, the extension was for only 20 days, resulted in a significantly shorter comment period for the Spanish speaking community. SOF ¶154. Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 39 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 40 - Similarly, notification of the Revised Draft EA to the Julia Keen neighborhood—the neighborhood most directly affected—was seriously flawed. No fliers or post cards advising of the release of the Revised Draft EA were directed to the Julia Keen neighborhood. SOF ¶155. Rather, the USAF relied almost exclusively on internet notifications and the DMAFB website, even though low income minority communities are less likely to have internet access. SOF ¶156. The only Spanish translation prepared in connection with the Revised Draft EA was of the proposed FONSI. SOF ¶157. These efforts were simply insufficient to allow for meaningful participation by the residents that the USAF admits are disproportionately affected by the proposed action and failed to comply with the federal requirements regarding environmental justice. Executive Order 12898 also requires an analysis of “the environmental effects, including human health, economic and social effects of Federal actions” on the minority and low income communities being affected by the proposed action. The “Sample Environmental Justice Analysis” found in the Air Force Guidance focuses on noise from both aircraft and surface traffic. Air Force EJ EIAP Guidance, Appendix E, p. E-3. The Final EA, however, has no such analysis of either aircraft or surface noise on the nearby neighborhoods, despite the significant increase of the number of TFT flights on the impacted group of residents. As explained in detail in the discussion on noise, this conclusion is based on incomplete and misleading use of data that has particular relevance to the Julia Keen neighborhood and other areas with minority and low income populations. For example, rather than counting the number of residents in this area, the analysis counts the number of residences. However, the Julia Keen neighborhood has a number of multi-family dwellings and it is one of closest neighborhoods to the northwest end of the runway at DMAFB. The neighborhood already experiences sound levels far above the 65-69 and 70-74 dBA levels Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 40 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 41 - indicated in the Final EA. The noise level of a single F-22 passing over at 500’ above ground level (i.e., the level of the Julia Keen Neighborhood) can reach 120 dBA. SOF ¶158. In short, all of the problems identified earlier in the discussion on noise impacts are most intensely applicable to the Julia Keen neighborhood and other affected low income and minority communities. The conclusion that the near doubling of sorties, new types of aircraft, potential night flights and other changes in the program will not have a significant impact on these neighborhoods is not substantiated by any analysis. Because the USAF failed to fully evaluate the environmental justice impacts of the proposed action on the human environment, the Final EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law. H. Because the Proposed Action May Have a Significant Environmental Impact the USAF is Obligated to Prepare an Environmental Impact Statement. The potential impacts of the proposed expansion of OSB and implementation of TFT to a year round training program that hosts a wide variety of aircraft with significantly greater noise contours requires the preparation of a full Environmental Impact Statement (EIS). NEPA requires that an EIS be prepared for all “major Federal actions significantly affecting the ... human environment.” Id. §4332(2)(C). Agencies may first prepare an Environmental Assessment to make a preliminary determination whether the proposed action will have a significant environmental effect. 40 C.F.R. §1501.4. “If the EA establishes that the agency’s action ‘may have a significant effect upon the ... environment, an EIS must be prepared.’” Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d at 730 quoting Found. for N. Am. Wild Sheep v. U. S. Dep’t of Agric., 681 F.2d 1172, 1178(9th Cir. 1982))(emphasis and alteration in original). Some of the factors considered in determining whether or not a project “significantly” affects the human environment include the existence of impacts to: (a) public health (b) public safety; (c) unique characteristics such as proximity to historic or cultural resources; (d) whether or not the effects are highly controversial; (e) whether the action is related to Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 41 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 42 - other actions with cumulatively significant impacts; (f) the degree to which the action may adversely affect sites . . . in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant . . . cultural, or historical resources ; (g) the degree to which the action may adversely affect an endangered or threatened species or its habitat; and (h) whether the action threatens violation of a Federal law or requirements imposed for the protection of the environment See 40 C.F.R. § 1508.27. The regulations also define “significantly” as involving “considerations of both context and intensity.” 40 C.F.R. §1508.27. In terms of context, “significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend on the effects in the locale rather than in the world as a whole.” 40 C.F.R. §1508.27(a). A party seeking to show that an agency should have prepared an EIS instead of a FONSI “need not demonstrate that significant effects will occur,” but rather must show only that “there are substantial questions whether a project may have a significant effect of the environment.” Anderson v. Evans, 350 F.3d 815,831 (9th Cir. 2003). Here, there are a number of factors that support a finding that the expansion of OSB and implementation of the TFT is a “significant” action and requires preparation of an EIS: The proposed expansion of the OSB program from what was first approved in 1978 to a year-round program involving a wide variety of aircraft that pose significant noise and safety issues represents a huge impact to all of the Tucson citizens who live and work in the central city. The potential health impacts from the increased noise alone are sufficient to support further analysis in an EIS. Moreover, much of the controversy surrounding the proposed action stems from the potential for increased noise over long-established Midtown and University of Arizona area neighborhoods. SOF ¶¶25-26. Several of the neighborhoods impacted by the expanded program are listed on the National Register of Historic Districts. SOF ¶159. Finally, the cumulative impact of the expanded program when combined with Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 42 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 43 - Davis Monthan and TIA flights is highly likely to result in significant impact to the community. Under these circumstances, the Air Force’s FONSI simply cannot be and is not supported by the EA. CONCLUSION In conclusion, the Final EA fails to provide the “hard look” that NEPA requires. It completely fails to analyze cumulative impacts; its noise analysis is inadequate and the USAF refuses without explanation to follow DOD guidance regarding supplemental metrics. The evaluation of impacts to children and health impacts generally ignores the most recent research and the decision to use 2009 as the baseline for the no action alternative cannot be justified. Although the Final EA acknowledges that the proposed action disproportionately impacts minority and low-income populations, its public outreach failed to ensure meaningful input from the residents most significantly impacted. When all of these factors are considered, it is apparent that the Final EA itself demonstrates that the proposed action may have a significant impact on the environment and the Air Force is obligated to prepare an EIS. Plaintiffs ask this Court to grant their Motion for Summary Judgment and find that the Final EA and FONSI failed to comply with NEPA and are contrary to law. DATED this_27th day of March, 2017 Arizona Center for Law In the Public Interest P.O. Box 41835 Tucson, AZ 85717 /s/ Joy E. Herr-Cardillo Joy E. Herr-Cardillo Timothy M. Hogan Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 43 of 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 44 - CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2017, I electronically transmitted the foregoing with the Clerk of Court using the CM/ECF system which sent notice to all attorneys of record. /s/Joy E. Herr-Cardillo Joy E. Herr-Cardillo Case 4:16-cv-00046-JAS-JR Document 28 Filed 03/27/17 Page 44 of 44