Judge tosses lawsuit from F-35 opponents, says National Guard environmental review OK

Chris Hubbuch | Wisconsin State Journal
January 5, 2022

A federal judge has dismissed one of two lawsuits filed by a group opposed to basing F-35 fighter jets in Madison.

Safe Skies Clean Water sued the National Guard Bureau in December, claiming it failed to study and account for the effects of 27 construction projects being undertaken to prepare Truax Field to host the new planes.

In an order released Wednesday, Judge William Conley sided with the National Guard, ruling the agency’s environmental assessment of the projects met the standards of federal environmental law.

The Air Force last year selected the 115th Fighter Wing as one of two units to get the next batch of the roughly $90 million F-35s, which will replace the current fleet of aging F-16s. The first planes are scheduled to arrive next year.

Safe Skies Clean Water asked the court to block construction and require the guard to complete a full review of the projects, which include a flight simulator building and aircraft shelters and are expected to cost up to $60 million.

The group alleged the military disregarded the potential for the projects to worsen the impact of toxic “forever chemicals” that have been found in soil and groundwater under the base and are believed to be connected to contamination of Starkweather Creek, Lake Monona and at least one Madison municipal well.

Safe Skies argued the Guard should have prepared an environmental impact statement rather than the more cursory environmental assessment that was done, and that the projects should have been reviewed under the environmental impact statement the Air Force prepared for the F-35 basing decision, which is the subject of a separate lawsuit by the group.

But Conley ruled the group failed to show the Guard did not take a “hard look” at the environmental impacts and rejected the notion that the assessments were improperly “segmented,” noting some of the construction projects were proposed as early as 2012 and were considered necessary to support the 115th’s current mission regardless of the F-35 deployment.

Appeal Possible

Kathleen Henry, an attorney for Safe Skies Clean Water, said the group is “disappointed” with the ruling and “weighing our options for appeal.”

Spokesperson Steve Klafka said Conley’s ruling “will adversely affect the thousands of people who live near Truax Field, many of whom are low-income and families of color.”

“Safe Skies believes a more thorough evaluation of the noise impacts of fighter jet training was needed, including one that addressed effects on mental and physical health, as well as the education of area children,” Klafka said.

A spokesperson for the Wisconsin National Guard declined to comment, noting that neither the state nor the 115th Fighter Wing were named as defendants. Citing the potential for appeal, National Guard Bureau spokesperson Wayne Hall said, “It would be inappropriate for us to comment on matters of pending litigation.”

Ground Broken

Contractor J.H. Findorff & Son broke ground in August on a $9 million flight simulator building, one of seven construction projects now underway, said Capt. Leslie Westmont, spokesperson for the 115th Fighter Wing.

The construction projects are expected to result in the disturbance of about 25 acres, which the groups say could further distribute PFAS compounds, which have been linked to cancer, liver disease and reproductive problems.

It has been almost four years since the Department of Natural Resources informed the 115th Fighter Wing, along with the Dane County Regional Airport and the city of Madison, that they were responsible for PFAS contamination on and around the base.

The National Guard agreed to take the lead on the required investigation, but under the federal process it could be 12 years before cleanup begins. The Guard plans to hold a public meeting on the cleanup next week.

Federal Court Decision on Safe Skies Lawsuit Against EA for Construction at Truax Field – 3jan22