“arbitrarily and capriciously” and failed to take a “hard look” at the consequences of the proposed action.
Here, despite a gargantuan administrative record, covering nearly 200,000 pages of
studies, reports, comments, and the like, the Navy selected methods of evaluating the data that supported its goal of increasing Growler operations. The Navy did this at the expense of the public and the environment, turning a blind eye to data that would not support this intended result. Or, to borrow the words of noted sports analyst Vin Scully, the Navy appears to have used certain statistics “much like a drunk uses a lamppost: for support, not illumination.”
Friday, December 10, 2021
A federal magistrate judge ruled in favor of the state Attorney General’s Office and a Whidbey anti-noise group in several critical issues in a lawsuit over EA-18G Growler aircraft stationed at Whidbey Island Naval Air Station.
Chief United States Magistrate Judge J. Richard Creatura filed the report and recommendation in the case Friday. The parties have 14 days to file written objections.
In 2019, the state attorney general and Citizens of Ebey’s Reserve filed separate lawsuits, which were later joined into one, in U.S. District Court. They argued that the Navy violated the National Environmental Policy Act, or NEPA, and other federal laws by not adequately analyzing the impacts an increased number of the Navy aircraft would have on the environment and the community.
Creatura did not pull any punches in his report, writing that the Navy selected methods of evaluating data that supported its goal of bringing more Growlers to NAS Whidbey.
“The Navy did this at the expense of the public and the environment, turning a blind eye to data that would not support this intended result,” he wrote. “Or, to borrow the words of noted sports analyst Vin Scully, the Navy appears to have used certain statistics ‘much like a drunk uses a lamppost: for support, not illumination.’”
Attorney General Bob Ferguson sent the Whidbey News-Times a comment about the decision Friday night.
“The Navy has an important job, and it’s critical that their pilots and crews have the opportunity to train,” he wrote. “That does not relieve the federal government of its obligation to follow the law and take a hard look at any harm to child learning and natural resources. Today the magistrate judge recognized that the Navy fell far short of its obligation.”
Specifically, Creatura found that the Navy violated NEPA by failing to disclose the basis for greenhouse gas emission calculations; failing to quantify the impact of increased operations on classroom learning; failing to talk a hard look at species-specific impacts on birds; and failing to give detailed consideration to the idea of moving some operations to the base in El Centro, California.
“With respect to the impact of this increased operation on childhood learning,” Creatura wrote, “the Navy acknowledged numerous studies that concluded that aircraft noise would measurably impact learning but then arbitrarily concluded that because it could not quantify exactly how the increased operations would interfere with childhood learning, no further analysis was necessary.”
All the other claims against the Navy were dismissed, which included arguments that the Navy also violated the Administrative Procedure Act and the National Historic Preservation Act. Under NEPA, the Navy’s final decision may only be overturned if the Navy acted “arbitrarily and capriciously” and failed to take a “hard look” at the consequences of the proposed action.
Creatura seemed receptive, for example, to COER’s argument that the Navy’s noise calculations that averages loud days with quiet ones doesn’t fairly represent reality, but he wrote that he is constrained in ruling because “the Navy did not arbitrarily or capriciously choose the annual average metric.”
Still, Creatura was critical of the Navy throughout his decision.
“One would think that with a nearly 200,000-page record, it would not be hard to convince a court that the Navy took a ‘hard look’ at the impacts on people and the environment,” he wrote. “However, the value of the record is not in its breadth but in its ability to inform the Navy’s decision. In this, unfortunately, the record is lacking.”
Bob Wilbur of COER said it appeared that the attorney general was successful on two issues and COER was successful on two issues. He said he was pleased with the outcome and hopes that the Navy does a better job on its Environmental Impact Statement the second time around.
Yet it’s unclear exactly what the ruling will mean. Creatura asked both sides to submit a stipulation regarding the appropriate remedy or a stipulated briefing schedule within 30 days.